Decided on June 06,1967



- (1.) I think the true rule in the case of an appeal brought against a person who is dead is that, if an application for amending the memorandum of appeal by substituting his legal representatives in his place is brought within the time prescribed for instituting the appeal or within the time as extended under S.5 of the Limitation Act, the application should be allowed and the appeal entertained. Else the application should be dismissed and consequently the appeal as a proceeding against a dead person see Bank of Commerce, Khulna v. Pratap Chandra (1946) FCR 32 and Santi Prasanna Mukerji v. Narendranath Ballabh ILR (1948) 1 Calcutta 25.
(2.) In these cases the respondent named in the memoranda of appeal admittedly died on 9-9-1966, but, the appeals with the dead person alone shown as the respondent were instituted only on 24-10-1966. The last day for filing the appeals was 31-12-1966 but the applications for substituting the legal representative of the dead person as respondent, was brought only on 31-5-1967. There is no application made under S.5 of the Limitation Act; nor, if one were made is there sufficient cause to excuse the delay. True, the appellant disclaims knowledge of the death of the respondent named until his legal representative brought it to the notice of this court on 24-5-1967 by means of applications to dismiss the appeals as incompetent. But then it would appear that the legal representative had come on record on his own application in the proceedings in the first court (these appeals are from orders made in proceedings in execution) on 20-10-1966. This was after notice to the appellant by his counsel and though the appellant would have it that his counsel refused the notices, I think knowledge of the death of the respondent named in the appeals must be imputed to the appellant at least on the date on which notice was given to him on the application by the legal representative to come on record, in otherwords, on some date before 20-10-1966. It is his own fault or that of his counsel if, by his own act, he denied himself this knowledge. There are therefore no grounds whatsoever for excusing the delay up to 31.5.1967 for bringing the appeals against the legal representative by seeking to substitute him for the dead person named as the respondent.
(3.) I dismiss these appeals as incompetent.;

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