KAMLAPAT Vs. BALDEO

JUDGEMENT

(1.) In this case the plaintiffs, now respondents, instituted a suit against the defendants, now appellants, to have it declared that certain property attached by the defendants in execution of a money decree against the father of the plaintiffs belonged to the plaintiffs, and -was not liable to be taken in execution of the decree against their father. The suit was dismissed by the Court of First Instance, bat was decreed on appeal by the Subordinate Judge. From that decree the unsuccessful defendants (the decree-holders Kamlapat and Musammat Anandi) preferred a second appeal to this Court.

(2.) That appeal came on for hearing before me sitting alone, and having heard the parties I referred an issue to the Lower Appellate Court under Section 566 of the Civil P. C.. The Subordinate Judge in reply returned the issue without any finding. He reported that Kamlapat, one of the appellants, had died, and that therefore he was unable to proceed to the trial of the issue remitted to him. The fact of Kamlapat's death was not known when the appeal originally came on before me for hearing.

(3.) Under the above circumstances it is contended for the respondents that the appeal has now abated, and I have to decide whether that contention is well founded or not.