- (1.) The petitioner complains of the trial Court requiring the petitioner to prefer a fresh title appeal upon it being discovered that one of the respondents had died prior to the appeal being filed. The petitioner relies on a Division Bench judgment, (State of West Bengal v. Manisha Maity, 1965 AIR(Cal) 459) where the procedure to be adopted in such a case has been succinctly recorded.
(2.) The order impugned was a result of the erroneous application made by the petitioner before the appellate Court.
(3.) It cannot be doubted that if a party dies during the pendency of the proceedings, such party may be substituted by his heirs, subject to the cause of action surviving. However, if proceedings are instituted against a dead party, they are incurably bad. In the present case, the title appeal was perfectly in order against the other parties thereto, but no appeal could be regarded to have been filed against the respondent No. 10 named therein since such respondent had died prior to the appeal being filed.;