R. Prasad, J. - (1.)THIS is a plaintiff's first appeal against the judgment and decree of Sri Mohammad Tufall Ahmad. I Civil Judge, Saharanpur, dated 5th July 1954 in Original Suit No. 109 of 1950. This first appeal was connected with another First Appeal No. 298 of 1954, which was filed by one of the defendants from the same decree. That first appeal, however, is now no more before us inasmuch as the appellants of that appeal entered into a compromise with the plaintiffs on the basis of which, the appeal was dismissed. The only appeal which is now before us is.
(2.)PANDIT Gopi Nath Kunzru, learned counsel for the plaintiff-appellant has argued the appeal before us on behalf of the plaintiff-appellant.
Before we deal with the appeal, it is necessary to dispose of a preliminary objection raised by the learned counsel for the appellant himself, to the effect, that this Court is not properly constituted and that the appeal cannot be heard. The two pronged arguments advanced by Pandit Gopi Nath Kunzru learned counsel for the appellant, is that when the office of Chief Justice of this Court fell vacant as a result of the elevation of Hon'ble Mr. Justice V. Bhargava, the Chief Justice of this Court, to the bench of the Supreme Court, Hon'ble Nasirullah Beg. J., the senior most Judge of this Court was appointed acting Chief Justice of this Court, but as oath of office has not been taken by him, this Court cannot be deemed to be properly constituted In the alternative, it was urged that if the appointment of Hon'ble Nasirullah Beg, J., is not to the office of Chief Justice of this Court, then there is no Chief Justice of this Court at present, and for that reason, this Court is not properly constituted.

(3.)AS a result of his elevation to the Supreme Court, Hobble Mr. Justice V. Bhargava took oath of that office on the 8th August 1966, and from that date the office of Chief Justice of this Court fell vacant. On the same date from the newspaper, it appeared that a notification has been made under Article 228 of the Constitution of India to the effect that the duties of the office of Chief Justice of this Court would be performed by Hon'ble Nasirullah Beg, J., the senior most Judge of this Court. Article 223 of the Constitution reads as follows:
"When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise unable to perform the duties of his office, the duties of the office shall be performed by such one or the other Judges of the Court as the President may appoint for the purpose." The marginal note of the Article consists of the following words:-- "Appointment of acting Chief Justice."