SANAT KUMAR MUKERJEE Vs. TARAPADA DUTTA

JUDGEMENT

(1.) Two decisions, one of the Lahore High Court and another of the Allahabad High Court, have encouraged the appellants to raise a question of procedure which, in our view, is devoid of substance.

(2.) The relevant facts are the following: One Kumar Sarat Kumar Roy was one of the appellants in the Court of appeal below. He died between the conclusion of the hearing and the delivery of the judgment. Apparently, the fact of the death was fact brought to the notice of the Court with the result that the decree came to be drawn up in the name of Sarat Kumar Roy who was dead at the time. Thereafter, the present second appeal was preferred to this Court by the legal representatives of the said Kumar Sarat Kumar Roy along with certain other persons. In the memorandum of appeal, the legal representatives of Kumar Sarat Kumar Roy named themselves, and along with the memorandum of appeal they filed an affidavit, stating the fact of Kumar Sarat Kumar Roy's death and its date. The Registrar called for an application for substitution, and no application having been filed, the matter was sent up to the Bench for orders.

(3.) It is contended on behalf of the appellants that on the facts of the present case, no application for substitution is necessary, and the affidavit filed by them ought to suffice. In support of this contention, reliance is placed upon the case in Hira Mal V/s. Sundar Singh 20 A.I.R. 1933 Lah. 710 (a decision of the Lahore High Court) and the case in Chanderdeo Chaube V/s. Megh Narain (a decision of the Allahabad High Court). The first of these decisions undoubtedly supports the contention of the appellants, but its value as an authority is practically nil as the learned Judges, beyond recording their opinion that they thought that no application was necessary, did not give any reasons for their opinion. In the Allahabad High Court case, however, certain reasons are given, but with reference to that case, it is to be noticed that, there, what the legal representatives filed was not merely the memorandum of appeal, but also an application for leave to proceed with the appeal as the legal representatives of the deceased party. There was, therefore, in substance, an application for substitution. In the course of his judgment, Nimatulla J. observed that. no application for substitution of names is necessary, where a party dies between the date of the decree and the filing of the appeal. This may be correct so far as the practice obtaining at the Allahabad High Court is concerned, but is not correct so far as this Court is concerned, as the learned Advocate for the appellants conceded.