S.K Choudhuri, J.:— This civil revision by the plaintiffs who are respondents first party before the lower appellate court, is directed against the order dated 25th May, 1973 passed in Title Appeal No. 23 of 1968 by the Second Subordinate Judge, Muzaffarpur, holding that the appeal has not abated for non-substitution of the heirs of deceased appellant No. 1 as also respondent No. 1, and since it has come to the notice of the court that there are heirs of these deceased persons, they should be added as parties in the appeal; the heirs of deceased appellant No. 1 as appellant and the heirs of deceased respondent No. 1 in the category of the respondents.

2. This revision was originally placed before a learned single Judge of this Court, who after hearing the parties reserved the judgment and ultimately referred the case to a Division Bench by his order dated 4th April 1980. The learned single Judge noticed in his order of reference the latest case of the Supreme Court in the case of N. Jayaram Reddi v. The Revenue Divisional Officer (AIR 1979 SC 1393) wherein it has been said that Rules 3 and 4 read with Rule 11 of Order XXII of the Code of Civil Procedure are based on the principle of audi alteram partem and the principle that underlies these provisions is that the legal representative of a deceased, who may be affected by the decision, must be afforded an opprotunity of being heard before any legal liability is fastened upon him, but in view of the Bench Decision of this Court in Parhlad Jha v. Sonelal (AIR 1974 Pat 338) which according to the learned single Judge, supports the contention raised by the petitioners, thought it proper to refer the case to a Division Bench. That is how, it has been placed before us for hearing.

3. In order to appreciate the points it will be necessary to give some salient facts. A suit was filed in the court of the Munsif, for declaration of plaintiffs' title and for confirmation of possession. The suit was decreed. Accordingly an appeal was filed by the defendants first party which is pending decision in the lower appellate court. During the pendency of the appeal, appellant No. 1 died on 3rd April 1970 and an application for substitution of the heirs of the aforesaid deceased was filed within time, namely, on 1st July 1970. It may be stated here that two sons of appellant No. 1 are already on record as appellants Nos. 2 and 3 and the heirs sought to be substituted were the widow and daughters. The said application unfortunately stood rejected for non-compliance of the lower appellate court's peremptory order for service of a copy upon the other side. This order of rejection is dated 22-6-1971. It further appears that during the pendency of the appeal, plaintiff-respondent No. 1 also died. According to the petitioners, he died on 25-10-1970 whereas according to the opposite party he died on 7-9-1970. The substitution petition was filed by the opposite party on 9-1-1971. It was alleged therein that two of the hairs, namely, the two sons of the deceased respondent No. 1 are already-on record as respondents Nos. 3 and 4 (who are petitioners Nos. 2 and 3 before this Court), and the daughters who are sought to be substituted have relinquished their share in favour of their brothers, namely, respondents Nos. 3 and 4. A. rejoinder was filed by the plaintiffs-respondents contesting the date of death as also the allegation of relinquishment of shares. It is said that thereafter the defendants appellants also filed an application to condone the delay in filing the petition, dated 9th January 1971 and set aside the abatement and thereafter substitute the heirs.

As the date of death of the plaintiff-respondent No. 1 was disputed evidence was taken by the lower appellate court. After hearing the parties it held that the date furnished by the plaintiffs-respondents was correct, namely, that respondent No. 1 died on 7-9-1970. The lower appellate court also disbelieved the case of relinquishment of the shares by the daughters of deceased respondent No. 1 in favour of their brothers-respondents Nos. 3 and 4. It also held that the estate of deceased respondent No. 1 is represented by the two sons already on record as respondents Nos. 3 and 4. It held further that the appeal did not abate for not bringing on record some of the heirs of deceased appellant No. 1 as two of the heirs were already on record as appellants Nos. 2 and 3, and as also in the case of deceased respondent No. 1.

4. Mr. Tribeni Prasad Sinha, learned counsel appearing in support of this revision application challenged the impugned order as illegal and without jurisdiction as the application for substitution of the heirs of deceased appellant No. 1 stood rejected for non-compliance of the lower court's peremptory order and the application for substitution of the heirs of deceased respondent No. 1 was, prima facie time barred, because the lower appellate court has recorded the finding that respondent No. 1 died on 7th September 1970, and not on 21st October 1970 as alleged by the defendants appellants. He contended that his argument fully finds support from the Bench decision of this Court in the case of Prahlad Jha's case (AIR 1974 Pat 338) (supra). Learned counsel appearing on behalf of the plaintiffs-respondents on the other hand, supported the impugned order by pointing that in fact and circumstances of the case, the course adopted by the lower appelate court was just and proper, specially when thy recent decision by the Supreme Court in Jayaram Reddi's case (AIR 1979 SC 1393) (supra) states that the basis principle underlying Rules 3 and 4 Order XXII read with Rule II of the Cods of Civil Procedure is a facet of natural Justice or a limb of audi alteram partem rule. Learned counsel also contended that it being a civil revision, the scope of interference is limited in view of the present amended Section 115 of the Code of Civil Procedure.

5. At the very outset, it may be stated that it is not a case where some of the heirs of deceased appellant No. 1 as also deceased respondent No. 1 have been brought on the record and some left out. It is a case where some of the heirs, of both the aforesaid deceased are on record; the heirs of deceased appellant No. 1 who are on record are the two sons, namely appellants Nos. 2 and 3, and the heirs of deceased respondent No. 1 who are on record are also the sons of the deceased, namely, respondents Nos. 3 and 4, in the appeal. It is not disputed that the widow and the daughters of deceased appellant No. 1, who are other heirs than on record, were not brought on record within time inasmuch as the substitution petition filed art their behalf which was within time, unfortunately for the appellants stood rejected far non-compliance of the peremptory order of the lower appellate court. So far as deceased respondent No. 1 is concerned, as already stated above, his two sons are already on record as respondents Nos. 3 and 4 and the heirs to be substituted are the three daughters. That application, however, was filed beyond time, from the date of death as recorded by the lower appellate court. It may also be stated here that the question that the appear abated as a whole was raised before the lower appellate court by the respondents and the said matter and the substitution matter have been disposed of by the impugned order after remand.

In the recent decision of the Supreme Court in Jayaram Reddy's case (AIR 1979 SC 1393) (supra) two separate judgments have been delivered by the two learned Judges of the Supreme Court. The question before the Supreme Court was as to whether the Government appeal arising out of a land acquisition proceeding stood abated in the High Court when the appeal was pending there, for non-substitution of the heirs of one of the respondents. Y. Prabhhakar Beddy, though in the other appeal preferred by the claimants, the heirs of the said deceased who wan one of the appellants in the appeal of the claimants before the High Court were substituted. Singhal, J., held that the question of abatement was not raised before the High Court and the two appeals having been heard together and disposed of by a common judgment, there was an abandonment of the technicality of abatement. According to the learned Judge the said technical plea of abatement and the consequential dismissal of the appeal was a matter at the discretion of the legal representative of the deceased-respondent and there was no justification for the argument to the contrary. The learned Judge, therefore, held that in the facts and circumstances of the case the plea that the Government appeal abated because of non-substitution of the legal representatives of the deceased. Y. Prabhakar Reddy the respondent was wilfully abandoned by the respondents.

6. The other learned Judge Desai, J., who agreed with the judgment of the learned Judge Singhal, J., however, entered into the question as to whether in the facts and circumstances of the case the Government appeal had not at all (sic). The said learned Judge in his elaborate judgment after discussion of various authorities came to the conclusion that in the facts and circumstances of the case, the Government appeal did not abate. He pointed out that the basic principle underlying Order XXII, Bules 3 and 4 which on account of the provision contained in Rule 11 of that Order of the Code of Civil Procedure, applied to appeals is undisputedly a facet of natural justice or a limb of audi alterem partem rule. The learned Judge pointed out that the first limb of this rule audi alteram partem is that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. He further stated in para 28 of his judgment as follows:—

“As a corollary to this rule it is provided in the Code of Civil Procedure that where a party to the proceeding dies pending the proceeding and the cause of action survives, the legal representatives of the deceased party should be brought on record which only means that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them…….”

The learned Judge has also discussed the case of Mahabir Prasad v. Jage Ram (AIR 1971 SC 742) in paragraph 30 of the report. The said paragraph has quoted the observation made in AIR 1971 SC 742 (744) as follows:—

“Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate.”

From this case the learned Judge deduced the principle that “where one of the legal representatives of the deceased party is before the court at the time when the proceeding is heard, but in another capacity, it is immaterial whether he is described as such or not and even if there are other legal representatives, the cause will not abate.” Several conclusions which have emerged from the various decisions discussed by Desai. J., have been enumerated in clauses (1) to (5) of paragraph 40 of the report. Then follows paragraph 41 a portion of which may be usefully quoted here.—

“41. Is it possible to ratiocinate these decisions? Apparently the task is difficult. Now if the object and purpose behind enacting Order 22, Rules 3 and 4 are kept in forefront conclusions Nos. 1 to 4 would more or less fall in line with the object and purpose, namely no decision can be recorded in a judicial proceeding concerning the interests of a party to a proceeding without giving such party or his legal representatives an opportunity of putting forth their case. To translate this principle into action denuding it of its ultra technical or harsh application, the Courts held that if some legal representatives are before the Court, or they are before Court in another capacity or are brought on record at some stage of the suit, the action will not abate even if there is no strict compliance with the requirements of Rules 3 and 4……”

7. The other case cited at the bar is Harihar Prasad Singh v. Balmiki Prasad Singh (AIR 1975 SC 733). The relevant portion relied upon by both the sides is the placitum (E), the discussion of which is to be found in paragraphs 32 and 33. Placitum (E) reads thus:—

“Where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law there is no abatement of the suit or appeal; the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record binds not merely those impleaded but the entire estate including the interest of those not brought on record. Unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceedings the heirs who have applied for being brought on record should be held to represent the entire estate including the interests of the heirs not brought on the record. The fraud or collusion must be a fraud or collusion between the appellant on the one hand and the representative of the deceased respondent who is brought on record on the other and vice versa. The fraud or collusion must be between the parties on record to the detriment of the legal representative who has not been brought on record.”

In Prahlad Jha's case reported in AIR 1974 Pat 338, it does not appear that any argument was put forward that the estate was fully represented by one of the heirs of deceased respondent No. 5. The heir on record was the father of the deceased who was respondent No. 1 and the mother was not brought on the record. The fact of death of Respondent No. 5 transpired during the pendency of the second appeal before this Court when the respondents filed an application that respondent No. 5 having died and his mother not having been brought on record within the period of limitation the appeal has abated. As it transpired in the second appeal that the said respondent had died in the lower appellate court, the High Court held that the appeal abated against respondent No. 5 and it had no jurisdiction to entertain the application for substitution after setting aside abatement and, therefore, the High Court remanded the case to the lower appellate court after setting aside the judgment and the decree of the lower appellate court and directing it to dispose of the appeal after passing appropriate orders on the application for setting aside the abatement of the appeal against deceased respondent No. 5. Thereafter the lower appellate court after hearing the parties rejected the said application for setting aside abatement and dismissed the appeal as incompetent. It appears that the application for setting aside abatement and substitution was filed on the plea that the appellants learnt about the death of respondent No. 5 for first time from the affidavit filed by the respondents that respondent No. 5 had died and his mother the heir, had not been brought on record within the period of limitation. They also alleged that they had no knowledge about the existence of the mother of the deceased respondent No. 5.

The findings recorded by the court below were against the appellants. It was held that the appellants have failed to make out sufficient cause for setting aside the abatement, as they were not ignorant of the death of respondent No. 5, and that respondent No. 5 died leaving behind his other heir, namely, the mother. The matter accordingly came to High Court again, it was held by the High Court that the said application for substitution was not a bona fide application and the appeal, therefore, abated against the deceased-respondent No. 5, and consequently the appeal abated as a whole. It also alternatively held that the plea that the appeal has not abated, cannot be permitted to be raised as the High Court had remanded the case on the previous occasion on the ground that the appeal had abated against the deceased respondent No. 5 and, therefore, this point is barred by the principle of res judicata. This case, therefore, is distinguishable on its own facts, and, therefore, it does not help the petitioners.

8. I may also point out here that in the present case fraud or collusion or other circumstances, which indicate that there has not been a fair or real trial or that against the absent heirs there was special case, which was not and could not be tried in the proceedings, was not pleaded or raised by the respondents before the lower appellate court, nor was it raised before this Court during arguments. The principle that has been laid down in Jayaram Reddi's case (AIR 1979 SC 1393) (supra) by the Supreme Court has already been stated above. It, bears repetition that the underlying principle of O. 22, Rr. 3 and 4 of the Civil P.C is “in disputably a facet of natural justice or a limb of audi alteram partem”. The lower appellate court having passed the impugned order by which left out heirs of appellant No. 1 and respondent No. 1 were allowed to be added as parties-appellants and respondents, respectively, it is difficult to hold that there has been any illegality committed by the lower appellate court. The principle, as laid down in Jayaram Reddi's case, fully supports the impugned order passed by the lower appellate court in the facts and circumstances of the case.

9. I shall now notice another hurdle in the way of the petitioners in attacking the impugned order. S. 115 of the Civil P.C, as it now stands, not only requires the petitioners to show that the subordinate court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested in it or has acted in the exercise of its jurisdiction illegally or with material irregularity, but further to satisfy the court that if the impugned order is allowed to stand, it would occasion a failure of justice or that an irreparable injury would be caused to the petitioners. In my view of the rider that if the order is allowed to stand, it would occasion a failure of justice or that irreparable injury would be caused to the petitioners, is a big hurdle in the way of the petitioners to cross which they have miserably failed. In that view of the matter also in revisional jurisdiction of this Court, no interference can be made in the present case.

10. In the result, there is no merit in the application. It is, accordingly, dismissed, but in the circumstance of the case I would make no order as to costs.

M.P Singh, J.:— I agree.

Revision dismissed.