Decided on February 06,1973

Chitradhar Gogoi And Others Appellant
Lalit Chandra Gogoi And Others Respondents


R.S. Bindra, J. - (1.) THE sole point which arises for determination in this second appeal filed by the heirs of the deceased -defendant is whether an appeal on behalf of the sole appellant who had died before it was filed can be availed of by his legal representatives. The first appellate Court has held that such an appeal cannot be resuscitated.
(2.) THE suit was decreed by the trial Court on 23 -9 -66 against the defendant Harakanta Gosoi. An appeal on behalf of the defendant was filed in the Court of the Assistant District Judge on 15 -11 -66. However Harakanta had died earlier on 10 -11 -66. It was on 3 -1 -67 that the legal representatives of the deceased -defendant moved the Assistant District Judge with a prayer for their being brought on the record vice Harkanta. That prayer rested on the Court's inherent power under Sec. 151 C.P.C. However the Court declined to exercise such powers and probably it was influenced in the decision it took by the fact that by the date the legal heirs approached the Court the appeal was barred by time. In this Court Sri J. K. Baruah the learned counsel for the appellants has placed reliance on the Provisions of' O. 1, Rule 10. C.P.C. to support the contention that the prayer of the legal representatives should have been granted by the Assistant District Judge inasmuch as there is no difference in law between a plaintiff or an appellant suing in wrong name and the suit or anneal being filed in the name of deceased plaintiff or appellant. This view is contested by Sri P. Goswami on behalf of the plaintiff -respondent. After examining the authorities cited at the Bar I feel that there is no merit in the contention raised on behalf of the appellants.
(3.) SUB -rule (1) of Rule 10, O. 1. provides that where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. A plain reading of the sub -rule brings out that there is some person in existence in whose name the suit had been filed - A suit filed in the name of a non -existent person, I feel satisfied would not fall within the ambit of sub -rule (1). The matter does not appear to be res integra. The Bombay High Court held in Bai Rani v. Madhabhai. : AIR 1953 Bom 356. that an effective order under Order 1, Rule 10, can only be made provided there is an appeal before the Court, but if the appeal is a nullity such as when it is preferred by the pleader of a person after his death, then any order made in that appeal is equally a nullity. The appeal thus being a nullity, an order for substitution of a legal representative in place of the deceased appellant cannot be made.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.