Decided on August 05,1965

P.V. Dehadrai Appellant
Navin Kumar Nanda Respondents


D.S. Mathur, J. - (1.)THIS is an appeal by P.V. Dehadrai, Defendant, against the order dated 16 -11 -1962 of the Additional Civil Judge of Dehradun dismissing his application for substitution of the names of the legal representative of the deceased decree -holder (Plaintiff) and for condonation of delay in moving the application. At the same time it was ordered that the appeal preferred by the present Appellant had become infructuous and was consequently dismissed;
(2.)THE suit of Smt. Rani Nanda for recovery of arrears of rent and for ejectment was decreed on 30 -11 -1961 and the Appellant preferred an appeal on 27 -2 -1962. Smt. Rani Nanda was impleaded as the Respondent but she had died in the month of January 1962. It was on 28 -3 -1962 that the Appellant moved an application for substitution of the name of Navin Kumar Nanda in place of the Respondent and also for the condonation of delay in moving the application. Strictly speaking, substitution application is necessary when a party to the suit or appeal dies; in other' words, a suit or appeal has been properly presented and it is necessary to substitute the names of legal representatives of a party duly impleaded. But where the Respondent died before the filing of the appeal, there is no proper appeal and no question of substitution arises. In such a case, the Appellant should implead the legal representatives in the memo of appeal at the same time, requesting the court that permission be granted to proceed against the legal representatives.
If the legal representatives are impleaded or a request for permission to prefer appeal against them is made within the period of limitation, no difficulty shall arise as the appeal shall be properly presented within time.

(3.)IN the instant case the appeal would have been within time upto 4 -3 -1962 but the application for proceeding against the legal representative was made on 28 -3 -1962. Unless this delay is condoned, the appeal could not proceed against the legal representative.

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