HARIPADA GUPTA Vs. BABU LAL MAHTO

JUDGEMENT

(1.) FROM the decision in a partition suit defendant 6 Haripada Gupta preferred this appeal. During the preparation of the appeal the Registrar being informed by the learned Advocate for the appellant that the sole appellant was dead and that he had no instructions in the matter, sent the record to a Division Bench for orders. Some time later the Advocate for the deceased appellant mentioned to the Bench that the appellant left him surviving two sons who were his legal representatives. An order was made substituting them in place of the deceased appellant and appointing the Deputy Registrar to be their guardian ad litem. On the case coming up for hearing, it is contended on behalf of the contesting plaintiffs respondents that the appeal had abated and that the order substituting the minors without an application, such as is contemplated in Order 22, Rule 3(1), was incompetent. Upon consideration of the matter we are of opinion that the argument has force and that in fact the appeal of the deceased sole appellant has abated and that in the absence of an application by his representatives under Order 22, Rule 3(1) it is not open to the Court to substitute them and direct that the appeal be proceeded with in their name. The proper procedure for them is an application at, such date as they may be advised under Order 22, Rule 9(2), under which they may ask for an order to set aside the abatement.

(2.) ACCORDINGLY it is only necessary to say here that the appeal has abated. The pleaders appearing on behalf of the Deputy Registrar and on behalf of the lunatic, respondent 13, whose interest is similar to that of the deceased appellant, have waived any claim to remuneration for their service. Our attention has been drawn to the decision in First Appeal No. 19 of 1922 Ramji Das V/s. Rai Mahamaya Prasad Singh Bahadur 1936 Pat 158 in which the Division Bench directed a stay of further proceedings, leaving it to the respondents to take steps in the matter, and observing that, if they took no steps, the minor on attaining majority will have to elect whether to proceed with the appeal or not. The position however there was quite different. The minor appellant was already on the record and his mother who had been his guardian having died, no steps had been taken either by the respondents or by anybody else to provide him with a next friend.