HEM KUNWAR Vs. AMBA PRASAD
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Henderson, J -
(1.) In this case four plaintiffs, Raj Bahadur, Musammat Mohni, Musammat Lachha Kunwar, and Hem Kunwar, sued the defendants to recover possession of certain property to which they claimed to be jointly entitled. The Court of First Instance gave the plaintiffs a decree from which the defendants appealed, making all four plaintiffs respondents.
(2.) Before the appeal came on for hearing, the appellants alleged that Musammat Mohni and Musammat Lachha Kunwar were dead, and upon their application Hem Kunwar was added a respondent, as the legal representative of the two respondents said to have died. When the appeal came on for hearing, Hem Kunwar satisfied the Court that Musammat Mohni was alive, and that he was not the legal representative of Musammat Lachha; and further, that the application to place him as their representative on the record was made more than 6 months after the death of the latter. No notice of the appeal had been served on Musammat Mohni, and upon that ground the Lower Appellate Court held that as against her the appeal could not proceed. With regard to Musammat Lachha,he set aside the order, which was an ex-parte order by which Hem Kunwar had wrongly been placed on the record as legal representative of Musammat Lachha, and went on to say: "The result is that under Section 368 read with Section 582 of the Code of Civil Procedure, the appellants appeal as against Lachha Kunwar, the deceased respondent, will fail." Thereupon, in the same judgment, he proceeded to deal with the appeal on the merits, and in the result made the following decree, namely, "that the appeal of the defendants-appellants be decreed as against the plaintiffs- respondents, Raj Bahadur and Hem Kunwar only, and the Munsif's decree so far as it concerns them be set aside, and in place thereof it is decreed that the claim of the plaintiffs-respondents, Raj Bahadur and Hem Kunwar, be dismissed with costs, that the appeal of the defendants-appellants be dismissed with costs as against the plaintiffs-respondents Nos. 2 and 3 (i.e., Musammat Mohni and Musammat Lachha Kunwar), and the Munsif's decree so far as it concerns them be upheld as it is." There was a further order as to costs which is immaterial in this case.
(3.) Against the decree of the Lower Appellate Court, Raj Bahadur and Hem Kunwar appealed on the following grounds, namey--(1) because the appeal should have abated as the representatives of the deceased respondent Lachha Kunwar were not brought upon the record within the period of six months allowed by the Statute, (2) because the trial of the appeal was contrary to the express provisions of Section 368 of the Civil P. C.. A preliminary objection was taken that these grounds were not directed against the decree of the Lower Appellate Court, and that the appeal was really an appeal against an order of the Lower Appellate Court under Section 368, in effect, if not in terms, directing that the appeal should abate so far as Musammat Lachha Kunwar was concerned and not against the decree, I think there is no ground for this objection. The appeal, in my opinion, was against the decree. There was no separate judgment upon the matter of the death of one of the respondents who died. That matter and the merits of the appeal were dealt with in the same judgment, and the finding of the Court as to both was embodied in the decree. In substance the appellants before the Court impugned the decree on the ground that the trial of the appeal upon the merits was contrary to the provisions of Section 368 read with Section 582 of the Code of Civil Procedure, and that the decree made was therefore bad.;
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