Das, C.J:— The short facts relevant for the purposes of the point raised in this appeal are the following. The appellant as the plaintiff brought a suit for a declaration that 7 bighas 19 kathas 19 dhurs of land situate in village Parsi Pakri formed part of her mukarrari tenure and for confirmation of possession. It appears that the plaintiff appellant owns proprietary interest in tauzi No. 9351, in which the tenure is held, to the extent of 13 annas and odd.

2. The remaining 2 annas and odd were owned by the defendants. On 11-8-1947, the learned Subordinate Judge who dealt with the suit in the first instance dismissed the suit. An appeal was then preferred to the district Court which was numbered Title Appeal 566 of 1947. Notices of the appeal were served on the respondents, including one Gudar Singh who was defendant 14 in the Court of first instance. It is stated that a notice of the appeal was served on Gudar Singh also, and Gudar appeared in the appeal. On 15-6-1948, Gudar died, but his heirs were not brought into the record; because none of the parties brought the fact of the death of Gudar to the notice of the court. On 20-9-1948, the appeal was heard in the absence of the heirs of Gudar, and on 21-9-1948, the appeal was dismissed. On 23-12-1948, the present appellant filed the second appeal and Gudar Singh was added as respondent 13, in ignorance of the fact that Gudar had died much earlier, on 15-6-1948.

3. On 20-1-1949, the second appeal was admitted and on 23-4-1949, the report of the peon, dated 31-3-1949, to the effect that respondent 13, Gudar, was dead, was put up before the learned Registrar. Then, on 25-4-1949, the appellant filed an application for setting aside abatement consequent on the death of Gudar, and substituting the heirs of Gudar Singh. The question which now has arisen is whether this application for setting aside abatement and substituting the heirs of Gudar Singh should be dealt with by this Court in this second appeal or the decree of the court of appeal below should be set aside on the ground that it was passed in respect of a dead person and the appeal should be remanded to the court of appeal below in order to deal with the application for setting aside abatement and substituting the heirs of Gudar Singh.

4. Mr. Prem Lall, appearing for the appellant, has drawn our attention to two decisions of this Court in which in similar circumstances the decree was set aside and the appeal remanded to the court of appeal below for dealing with the application for setting aside abatement and substituting the heirs of the deceased respondent. I may state at the very outset that in the application filed by the appellant it has been stated that sire did not know of the death of Gudar Singh on any date earlier than the date on which the peon's report dated 31-3-1949, was brought to her notice.

5. Learned Counsel for the appellant has relied on the decision in Mir Wajid Ali v. Pagoo Mandal, 1938 Pat 125 (AIR V 25) (A) where it was held that when the appellant had already succeeded in serving the notice of the appeal on the respondent, he had done all that was expected of him to do in connection with the appeal; he was not thereafter bound to enquire from day to day as to the state of the health of the respondent or whether, the respondent is dead or alive.

6. The decisions on which Mr. Prem Lall has relied are these. The first is the unreported decision of this Court in the case of Hanuman Bhagat v. Ramdeo Narain Jha, S.A No. 952 of 1944, D/- 17-9-1947 (Pat) (B), in which in almost identical circumstances the following order was passed by a Bench of this Court:

“It is admitted that three of the respondents to this appeal died during the pendency of the appeal in the court below. The decree must, therefore, be set aside and the case sent back to the court of appeal below with a direction that, if an application for substitution of the heirs of the deceased respondents be made within one month from the receipt of the record in the court below, that court will proceed to consider the application, and, if substitution he allowed, to hear the appeal. If the application be not made within the time stated, the appeal in the court below will be dismissed.”

7. The other decision on which Mr. Prem Lall has relied is R.S Ahir v. P.N Singh*, 1952 Pat 267 (AIR V 39) (C). That was a case in which two plaintiffs, Ramdeo Singh and Prithwi Nath Singh, who were members of a joint Mitakshara family, instituted a suit for declaration of title and recovery of possession in respect of certain plots of land with a house standing thereon; the suit was decreed in full by the trial court, but the contesting defendants then preferred an appeal to the district court in which Ramdeo and Prithwi Nath were impleaded as respondents 1 and 2.

8. Notices were served on them and both of them appeared as the ordersheet showed, by a vakalatnama on 30-1-1948. Ramdeo, however, died near about that time; but the fact of his death was not brought to the notice of the court and it proceeded to decide the appeal in ignorance of his death. Eventually, on 15-9-1948, it allowed the appeal in part and modified the decree of the trial court.

9. From this appellate decree Prithwi Nath alone preferred an appeal to this Court, and along with/the memorandum of appeal he filed an affidavit sworn by himself in which he stated that Ramdeo had died on 1-1-1948. At the hearing of the second appeal the point argued on behalf of Prithwi Nath was that the appeal in the lower appellate court could not proceed after it had abated as against the respondent Ramdeo Singh who was a member of the joint family with the surviving respondent Prithwi Nath Singh. Sinha, J., who heard the appeal, gave effect to this contention and he disposed of the appeal in these terms:

“This appeal is, therefore, allowed, the judgment and decree passed by the lower appellate court are set aside and the decree passed by the trial court restored with costs throughout.”

10. From this decision a Letters Patent Appeal was taken and in this Letters Patent Appeal their Lordships considered the decision of some of the other High Courts and held that the appeal in the court of appeal below could not proceed without bringing into the record the heirs of Ramdeo Singh and as the defendants' case was that they were never aware of the death of Ramdeo Singh and they came to know of it only after the institution of the second appeal, they could certainly file an application for setting aside the abatement in the court of appeal below; but by the time they came to know of the death of Ramdeo, the second appeal had already been filed in this Court and they presented an application in this Court for setting aside the abatement.

11. Their Lordships held that the proper court to deal with the application for setting aside the abatement was the court of appeal below. Their Lordships held that the proper course was to allow the appeal and set aside the decision of Sinha, J. and send the application filed before him for setting aside the abatement to the court of appeal below for disposal according to law.

12. Mr. Prem Lall contends that the same course should be followed in the present case as well. Mr. U.N Sinha, appearing on behalf of the respondents, has contended before us that the order passed in Second Appeal No. 952 of 1944 (Pat) (B) should not be taken as an authority for the view canvassed for by Mr. Prem Lall, because the order does not discuss the question at issue and gives no reasons for the view taken.

13. As to the decision in 1952 Pat 267 (AIR V 39) (C), Mr. U.N Sinha has sought to distinguish it on the ground that) in that case the decree that was passed by the court of appeal below was a decree against a dead person and not in favour of a dead person. Therefore, the argument of Mr. U.S Sinha is that in a case where a decree has been passed in favour of a dead person, the other side whose appeal or case has once been heard on merits is not entitled to have the case re-heard; secondly, Mr. U.N Sinha has contended that the decree passed by the court of appeal below was not a nullity and cannot be set aside by this Court; according to Mr. Sinha, the proper procedure to be followed in such a case is for the appellant here to move an application for setting aside the abatement and substituting the heirs of Gudar Singh in the court of appeal below, and the court of appeal below can set aside the decree passed by it in the exercise of its inherent jurisdiction if it is satisfied that the application for setting aside the abatement should be allowed. In support of these contentions Mr. Sinha has referred us to several decisions. I now proceed to consider them.

14. The earliest decision to which Mr. Sinha has drawn our attention is the decision in Vellayan Chetty v. Jothi Mahalinga Aiyar, 1916 Mad 574 (AIR V 3) (D). That was, however, a case in which no question of a second appeal arose. Two days before the appeal was heard in the High Court, one of the respondents had died; this was not brought to the notice of the High Court and the appeal was heard and dismissed.

15. Then an application was filed for the rehearing of the appeal. This was refused on the ground that an unsuccessful litigant has no right to argue his case more than once merely on the ground that one of the other parties to the proceeding was dead at the time of the hearing. I do not think that the principle laid down in that decision can apply in the present case. In the present case the appellant has a right of second appeal and it is not seriously disputed that in the absence of the heirs of Gudar Singh, the appellant cannot successfully prosecute his appeal in this Court on merits.

16. If, for example, the second appeal in this Court is allowed, then there will be two conflicting decrees, one in favour of the appellant and the other in favour of the heirs of Gudar Singh who have not been brought on the record and who cannot be bound by any judgment passed by this Court in the present second appeal. In view of the nature of the case which the appellant was seeking to make, namely, that the lands in dispute formed part of a mukarrari tenure under the defendants, the case could not be heard and finally determined in the absence of some of the defendants.

17. This was, therefore, one of those cases in which the whole appeal abated in the court of appeal below by reason of the death of one of the respondents. There may be cases where the right to sue or the right to appeal survives even after the death of one of the parties, and in such a case the decree cannot be said to be a nullity by reason of the death of one of the parties. Where, however, the case cannot proceed by reason of the death of one of the parties, the decree passed in respect of a dead person must, in my opinion, be a nullity. I am, therefore, of the view that in the case before us the court of appeal below could not proceed with to appeal in the absence of the heirs of Gudar Singh.

18. Two other decisions to which learned Counsel for the respondents drew our attention are Surya Narayana v. Joga Rao, 1930 Mad 719 (AIR V 17) (E) and Mahomed Naina Rowther v. Muhammad Heriya Rowther, 1933 Mad 218 (AIR V 20) (P). In the case of 1930 Mad 719 (AIR V 17) (E) the legal representative of the dead person was brought into the record and was heard and in his presence the decision was given.

19. There was no question of dealing with an application for setting aside abatement on the ground that the death of one of the parties was not known or was not brought to the notice of the Court, in these circumstances it was held that it was not open to the party who was really heard and against whom a decree was passed on merits to take advantage of the death of one of his opponents and claim a rehearing of the appeal on merits. If in the present case the same principle is followed, then the result will be a manifest injustice; because the appellant would be deprived of the right of prosecuting his second appeal in the absence of the heirs of Gudar Singh.

20. There must, in my opinion, be some machinery to deal with the application of the appellant for setting aside abatement and bringing the heirs of Gudar Singh into the record; otherwise the second appeal of the appellant is bound to fail on the ground of incompetency. Such an application for setting aside abatement can only be dealt with by the court of appeal below, where the abatement occurred, and the court of appeal below can have no jurisdiction unless the decree is set aside and the court has seisin of the case.

21. After the court has passed a decree, it is functus officio and cannot entertain an application for setting aside an abatement and substituting the heirs of a deceased party in the record. The decision in 1933 Mad 218 (AIR V 20) (P) is also not in point; because no question of a right of second appeal arose for consideration in that case.

22. Mr. Sinha also referred to the decision in Noai Chowkidar v. Official Trustee of Bengal, 1929 Cal 527 (AIR V 16) (G). All that was decided in-that case was that an order passed against a dead person would be a nullity, but there are authorities showing that where an order is passed in favour of a dead person it is not altogether and in all circumstances a nullity. I have already stated that there may be cases in which a decree passed in respect of a dead person may not be a nullity. That will depend on the circumstances of the case.

23. Where, however, the case cannot proceed in the absence of one of the parties to the action, a decree passed in respect of a dead person must be held to be a nullity; and when an application is made for setting aside abatement and substituting the heirs of the deceased party on the record, such application must be dealt with by the court in which the abatement occurred. The same view was expressed in Amarsingji Indrasingji v. Desai Umed, 1925 Bom 290 (AIR V 12) (H), a decision which was approved of in the Letters Patent Appeal in 1952 Pat 267 (AIR V 39) (C).

24. On a consideration, therefore, of the cases I cited before us, I am of the opinion that the proper procedure to follow in the present case is the procedure which was followed in 1952 Pat 267 (AIR V 39) (C). I would accordingly allow the appeal, set aside the decree passed by the court of appeal below and remand the appeal for a fresh hearing in accordance with law. The application which the appellant has filed in this Court for setting aside abatement and substituting the heirs of Gudar Singh should be sent to the court of appeal below for disposal according to law. In the peculiar circumstances of this case, there will be no order for costs of the hearing of the appeal in this Court.

Imam, J.:— I agree.

V.B.B

25. Order accordingly.