The Judgment of the Court was as follows:—
This was a suit brought to recover possession of certain property by one Abdul Majid. During the pendency of the suit Abdul Majid died, and an application for substitution under Or. 22, r. 3 of the Code of Civil Procedure was made by two of his sons. At or before the hearing the Defendant pointed out that Abdul Majid died leaving him surviving a third son Ahamadulla. Notwithstanding this warning the other two sons, did not apply to have Ahamadulla substituted as one of the heirs of Abdul Majid, nor did Ahamadulla apply to be made a party to the suit. At the trial an issue was raised as to whether Ahamadulla was one of the legal representatives of Abdul Majid, and the trial Court held that he was not, and, proceeding to hear the suit on the merits, decided the case in favour of the Plaintiffs. The Defendant appealed, and it appears that at the hearing of the appeal an application was made by the Appellant to adduce further evidence in support of his contention that Ahamadulla was the son of Abdul Majid. Now, the Respondents did not take their stand upon the inadmissibility of such evidence, but applied for leave to ??? further evidence to rebut the ??? contention that Ahamad ??? one of the sons of Abdul ??? circumstances obtain Ahamadulla was one of the sons of Abdul Majid. In our opinion, in second appeal, having regard to the evidence upon this issue of fact that was before the learned District Judge, we are unable to disturb the finding at which he arrived. The learned District Judge dismissed the suit upon the ground that the legal representatives of Abdul Majid not having been duly substituted the suit abated under Or. 22, r. 3, Civil Procedure Code. On behalf of the Appellants it is urged that Or. 22, r. 3 does not apply because an application for substitution was duly made by the “legal representative” of Abdul Majid within Or. 22, r. 3. In our opinion, “legal representative” in Or. 22, r. 3 means the legal representative or representatives of the deceased Plaintiff, or all the representatives of whom the representative applying knew or ought to have known., Ghamandi Lal v. Amir Begum (1) and Haidar Hussain v. Abdul Ahad (2). It well may be that if one or more of the legal representatives are unknown or all unwilling to join in the application under Or. 22, r. 3, different considerations will arise, and that a bonâ fide application by all the representatives who are willing to join in making the application will be a sufficient ??? with Or. 22, r. 3 [Bhikaji ??? v. Purshottam (3), ??? v. Ramayya (4) and ??? v. ??? (5) ??? was to be made he would not have been willing to join in it. That contention, therefore, fails.
The learned Advocate on behalf of the Appellants further urged that, even assuming that is so, under Or. 22, r. 5 the trial Judge erroneously decided the issue as to whether Ahamadulla was the son of Abdul Majid, and, inasmuch as the learned District Judge has found that erroneous finding did not affect the decision of the case within sec. 105 of the Civil Procedure Code, the failure on the part of Ahamadulla either himself or through his brothers to join in the application under Or. 22, r. 3 was not fatal to the proceedings. Now, it has been held that “affecting the decision of the case” within sec. 105 means “affecting the decision of the case on the merits, Sayma Bibi v. Madhusudan Mohanta* (6) and cases therein cited, and the learned Advocate for the Appellant contends that inasmuch as this error on behalf of the learned trial Judge did not affect the decision of the case on the merits, the appeal has not abated. The answer to that contention appears to be that any “error, defect or irregularity in any order” under sec. 105(1) had been held to mean an error, defect or irregularity in law or procedure and not an incorrect finding of fact. Sankali v. Murlidhar (7) and Balabai v. Ganesh Sankar (8). In this case, however, error which the learned trial Judge reasons, in our opinion, the appeal fails and must be dismissed with costs.
P.C