1. This revision application is by the State of Gujarat. A few facts are necessary to state for understanding the controversy. Plaintiffs' claim was that defendants Nos. 1 and 2 are liable to rent etc., in respect of a shop. According to the plaint, defendant No. 3 was in actual possession of the said shop as a tenant of defendants Nos. 1 and 2. The plaintiffs therefore claimed to eject defendant No. 3 and prayed for possession of the shop. Defendant No. 3 died on 30-10-1958, but this fact was not noticed by either the Trial Court or the counsel, and a decree was passed on 7-1-1959. An appeal was filed against the decree, and in the course of the appeal, application, Ex. 14, was filed on 31-3-1960, for bringing the heirs of deceased defendant No. 3 on record. Another application, Ex. 23, was given by defendants Nos. 1 and 2 to the effect that the suit had abated and that the Court should declare that the suit had abated. The Appellats Court passed one order on both Exts. 14 and 23 on 26-7-1960. The Court held that the whole suit cannot abate in the circumstances. It also allowed the legal representatives of the deceased defendant No. 3 to be added as respondents. It is against this order that the State of Gujarat has come in revision. The State of Gujarat happens to be made a party as a result of the merger of the Stats of Danta, in which the property is situate, with the State of Bombay.
2. In revision, various contentions have been argued at length, namely, the provisions of Order 1, Rule 10, Order 9, Rule 6 and Order 9, Rule 7, C. P. Code and Section 22 of the Limitation Act. But it is not necessary to decide those points, because the whole matter can be decided shortly as follows:
3. Order 22, C. P. Code deals with death of parties and deals with cases where a plaintiff or one of the plaintiffs or a defendant or one of the defendants dies. It is provided in Order 22, Rule 11 as under:
"In the application of this Order to appeals, so far as may be, the word 'plaintiff shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal."
So Order 22, C. P. Code, can be applied to appeals, and when it is so applied, we have to read for the word 'plaintiff the word 'appellant' or for the word 'defendant' the word 'respondent', and we have to read 'appeal' for the word 'suit'.
4. When an appeal is, therefore, pending, the Appellate Court is concerned with the question whether the appeal abates or not either as a whole or in part. The Appellate Court, for the purpose of interlocutory orders, is not concerned with abatement of a suit. The question of abatement of a suit may be argued in appeal and may form the subject-matter of the judgment in appeal, but an Appellate Court cannot pass interlocutory orders regarding the abatement of a suit or regarding the substitution of the legal representatives of the deceased plaintiff or the defendant. In an order during the pendency of appeal, the Appellate Court can order that the heirs of a deceased appellant or a deceased respondent can be added. But it cannot order that the heirs of the deceased plaintiff or the deceased defendant be added.
5. But in the order passed below Exs. 14 and 23, the learned appellate Judge decided the question whether the whole suit abated or not. He was not deciding this question while pronouncing the judgment in appeal. He also allowed the appellant State to join the legal representatives of the deceased respondent No. 5 as party to the suit. This he cannot do. He cannot change the nature or the names of the parties to the suit. He can only allow the addition of certain persons as legal representatives of. the parties to the appeal.
6. The Appellate Court can pass orders under Order 22, C.P. Code, only if one of the parties to the appeal dies alter the suit has been decided and during the pendency of the appeal. The Appellate Court cannot pass orders under Order 22, C. P. Code in respect of a party who had died during the pendency of the suit. The same view has been taken in Amarsangji v. Desai Umed, 27 Bom LR 91 : (AIR 1925 Bom 290) and Mrs. Gladys v. Dharkhan, AIR 1958 Pat 373.
7. The revision application is, therefore, allowed and.
the order passed by the lower Appellate Court is set aside.
No order as to costs.
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