RADHA MOHAN SINGH Vs. SHREE KISHUN GIR

JUDGEMENT

(1.) This second appeal and the application in revision are by the plaintiff in a money suit. The claim was for is 1692/3/9, and the learned Munsif gave a joint decree against the defendants five in number. In first appeal the learned Subordinate Judge held that the claim was entirely false, and dismissed the suit.

(2.) It is now contended that the appellate decision was incompetent and without jurisdiction in the following circumstances. During the pendency of the appeal, on 16-8-1944, defendant, 2 died. On 16 of September before the period of limitation for an application for substitution had expired, tinremaining appellants filed an application saying that substitution was not necessary as the sole heir was already on the record, (this was incorrect; there were also other heirs) and asked instead that the name of the deceased defendant 2 be expunged from the category of appellants. This was done.

(3.) Later on the respondents filed an application asserting that the appeal had abated as against defendant 2, and consequently the whole appeal had abated as the decree was joint. The Court held that no question of abatement arose in the matter, and that under the provisions of order 41, Rule 4, Civil P.C., it was open to any of the defendants to appeal and get the whole decree set aside, if successful. He then proceeded to dispose of the appeal in the manner already indicated.