Lal Behari Gorain And Others v. Ishwar Gorain And Others

1. This is an application for substitution of the legal representatives in place of the deceased appellant 4 who is said to have died on 15-8-1953. The application for substitution was filed in this Court on 7-12-1953. It was contended on behalf of the petitioners that there had been a preliminary decree in a partition suit against which an appeal had been filed in this Court which was numbered as First Appeal No. 383 of 1947.

2. During the pendency of the appeal appellant 4, Awadhesh Gorain, died on 15-8-1953, and the present substitution was necessary to enable the appellants to prosecute the aforesaid first appeal.

3. Mr. Prasad contended that the provisions of Rs. 3 and 4 of O. 22 of the CPC had no application; on the contrary, it was R. 10 of the said Order which applied. He relied upon two decisions of this Court, — ‘Babuie Shanti Devi v. Khodai Prasad Singh’, 1942 Pat 340 (AIR V 29) (A), and — ‘Raghunandan Sahu v. Badri Pandey’, 1945 Pat 380 (AIR V 32) (B). He urged that in view of this the question of abatement did not arise.

4. Mr. Gaurishanker Prasad, on the other hand, has contended that R. 10 of O. 22 has no application and the application for substitution of the legal representatives in the place of the deceased, appellant 4 not having been made within the period of limitation it must be held that the appeal so far as appellant 4 at any rate was concerned hast abated, if not the whole appeal. In our opinion in view of what has been stated in the two Patna cases there can be no question that R. 10 of O. 22 applies and not Rr. 3 and 4.

5. It will be noticed that in Rr. 3 and 4 the; question of substitution arises on the death of a plaintiff or defendant when the right to sue survies. Where a preliminary decree has been made the rights between the parties have been determined and the question of the right to sue surviving does not arise.

6. Consequently under R. 10 which speaks of “In other cases” the Court can permit the appeal to be continued by the person upon whom the interest of the deceased appellant has devolved. In these circumstances the application is allowed and the persons mentioned in the petition as the legal representatives of the deceased appellant are substituted in his place. There will be no” order for costs.

D.H.Z

7. Application allowed.