- (1.) UMESHWAR Pandey, J. This ap peal under Order XLIII, Rule 1 (k) has been filed against the order dated 97-1986 passed by the Additional District Judge, Ballia whereby the appellant Awadh Behari Singh's petition under Order XXII, Rule 9 C. RC. moved for set ting aside the abatement and to record the substitution of the deceased appel lant was rejected.
(2.) THE brief facts are. that the respondents Kamta Singh and Munni Singh filed a suit against the two brothers Ram Avadh Singh (deceased) and the present appellant Avadh Behari Singh in the trial Court. THE suit was decreed vide judgment dated 11-7-1979. THEreafter out of two defendants only Ram Avadh Singh filed an appeal before the District Judge and his brother Awadh Behari Singh was made a respondent in it. While the appeal (CA No. 250/1979) was pending, the appel lant Ram Avadh Singh died on 30-7-1983 leaving the present appellant his brother Awadh Behari Singh as the sole heir. THE appellant Awadh Behari Singh moved the Lower Appellate Court vide application dated 23-1-1984 for his sub stitution at the place of his deceased brother. That application was contested and objections were filed from the side of other respondents. THE learned Lower Appellate Court after having heard the parties and on placing reliance upon a decision of Division Bench of this Court in case of Thakur v. Mst. Maida Kaur and Ors. , reported in AIR 1954 Aild. 305, found that the appellant-Awadh Behari Singh could not be legal ly transposed as an appellant and ac cordingly his prayer for substitution after setting aside the abatement of ap peal, was refused by the impugned order. The learned Counsel for the appellant-Awadh Behari Singh contends that since one of the defendants, who had not preferred an appeal against the decree passed by the trial Court, was al ready there on record as a respondent in the first appeal, the said appeal could not abate. In support of this contention, reliance has been placed upon the case law of Munney Khan v. Kallo Singh and Ors. , reported in 1986 ACJ 235 and also case law of Mahabir Prasad v. Jage Ham and Ors. , reported in AIR 1971 SC 742. With the strength of the aforesaid principle of law, the learned Counsel for the appellant has emphasised that in the present case the only thing which was required to be done by the Lower Appellate Court was to transpose Awadh Behari Singh in place of his deceased brother Ram Avadh Singh as an appellant. In the case of Mahabir Prasad (supra), the Apex Court while permitting transposition of a legal representative of the deceased who is already on record in another capacity, has observed as below: "where in a proceeding a party dies and one of the legal representatives is al ready on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal reprerentative Even if there are other heirs and legal representatives and no application for impleading them is made with in the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustened".
(3.) THE Apex Court in observation has thus, propounded that where one of the legal representatives of a deceased is already on record in some other capacity then also the said appeal or other proceeding as the case may be, shall not abate on the death of such party. THE question of limitation will not arise in such cases. THE learned Single Judge placing reliance upon the aforesaid principle of law laid down by the Apex Court, has also expressed his view in the same manner in para-5 of the judgment in Munney Khan's (supra) case, which is reproduced below: "in the instant case, as seen above, there was no dispute that one of the legal rep resentatives of Smt. Jamuna Devi who was also a co-piaintiff in the suit namely Kalloo Singh respondent No. 1 was already on record and as such the appeal could not abate. THEre is no limitation prescribed for impleading we remaining legal repre sentatives on record and this could be done any time before the disposal of the appeal in order to keep the record straight That, in the instant case was done and the lower appel late Court should accordingly have impleaded Smt. Basanti Devi also in the appeal and disposed it of on merits". In the instant case, the suit for in junction was filed against the appellant-Avadh Behari Singh and his deceased brother and it was decreed. It was only the deceased Ram Avadh Singh who preferred the appeal before the District Judge and Avadh Behari Singh was impleaded as a respondent in it. On the death of Ram Avadh Singh on 30-7-1983, no application for his substitution was filed till 23-1-1984 when only the appellant Avadh Behari Singh moved the Court for setting aside the abatement and for transposing him as appellant in the appeal. That prayer, in any view of the matter could not be legally refused in the face of the Apex Court's decision in the case of Mahabir Prasad (supra) and also because the appeal could not have been eated as abated for want of substitution application, as the sole legal representative of the deceased was already on record.;