SHIVRATRI DEVI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE learned counsel for the appellants is permitted to make necessary correction in the cause title of the interlocutory application.

(2.) IN the instant interlocutory application the appellants have prayed for leave to make themselves appellant and to allow them to proceed with this appeal as the legal representative of deceased Jagdish Chowdhury who was the defendant - respondent before the lower appellate Court and died after conclusion of the hearing of the appeal and before passing the judgment and decree therein and as such the names of legal representatives could not he substituted in the lower appellate Court but have been entered as appellants in the memo of appeal. In support of same the appellants have 20/5/2014 Page 13 sworn an affidavit. Defect has been pointed out by the stamp reporter regarding substitution of the names of the legal representative in place of Jagdish Chowdhury in the cause title of memo of appeal though their names do not appear in the decree of the lower appellate Court.

(3.) MR . Jha objecting the prayer made in the interlocutory application has submitted that since the decree is in the name of a dead person the same is a nullity and the appeal preferred by the legal heirs representatives cannot be entertained. He further submitted that since the said Jagdish Chowdhury died before the decree was passed by the Courts below any order regarding substitution can only be passed by the lower appellate Court and this Court cannot pass an order Kiti Rana Versus State Of Bihar (Now Jharkhand) allowing the legal representatives to proceed with this appeal unless they are so substituted by the lower appellate Court.