Decided on October 15,1901



- (1.) THE Appeal No. 135 of 1896 on this Court's tile was preferred jointly by the first and second defendants, against both of whom the decree appealed against was passed. During the pendency of the appeal one of the appellants, namely, the first defendant died, and without his legal representative being brought on the record the appeal came on for hearing. Mr. Sankara Nayar, as the surviving appellant's vakil, then represented. to the Court that he was prepared to go on with the appeal on behalf of the survivor; and the appeal was accordingly heard, with the result that the decree appealed against was reversed and the suit dismissed with costs throughout.
(2.) IT is contended by the petitioner, the appellant before us, who is the son and legal representative of the deceased first defendant, that in the appeal prosecuted by the second defendant alone, the whole decree was reversed and the suit as against both the defendants was dismissed and that consequently the petitioner, as the legal representative of the first defendant, is entitled to restitution of the amount of costs realized by the plaintiffs against the first defendant only in execution of the original decree that was reversed in appeal. We are unable to accept the construction placed by the petitioner's vakil on the decree of this Court. IT is expressly recited in that decree that the appeal was prosecuted only on behalf of the surviving defendant and we must therefore construe the decree as limited to his interests only. IT would be unreasonable to construe the decree as being intended to enure for the benefit of the first defendant also, and to consider that the decree appealed against was reversed in favour of his representative. According to our construction of the appellate decree the decree of the Original Court must be regarded as still in force as against the first defendant and his heir, the petitioner, is therefore not entitled to restitution of the costs levied from his father under that decree until he successfully prosecutes the still pending appeal of his father. The petitioner being a minor, the law of limitation will be no bar to his taking the necessary steps towards that end. These appeals are therefore dismissed, but in the circumstances of the case we make no order as to the costs of the appeals.;

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