J.P.Jain, J. - (1.) This second appeal was filed against Chand Mohammed. Chand Mohammed had died during the pendency of the first appeal in the lower appellate Court and his legal representatives had been brought on record. By mistake the cause title in the lower appellate Court was not amended and the decree-sheet drawn mentioned the name of Chand Mohammed as appellant instead of his legal representatives. This error resulted into filing the appeal by Mr. H.M. Parikh against Chand Mohammed, a dead person. Notice of this appeal was received by Seikh Mohammed son of the deceased Chand Mohammed, but it was stated that Chand Mohammed had died. On 26-3-1974 when the case was fixed in the office for service Mr. Parikh came to know of this fact. After inquiry from his client he filed an application on 27-3-1974 for deleting the name of Chand Mohammed and for impleading the names of his legal representatives as respondents in the appeal. The application under Section 5 of the Limitation Act was also submitted for condonation of delay. Mr. Parikh also submitted an affidavit in support of his contention that the name of Chand Mohammed had been shown as respondent on account of the decree-sheet supplied to his client by the lower appellate Court.
(2.) This application has been opposed. The contention on behalf of the legal representatives of the deceased is that the appeal against the dead man being a nullity this court has no jurisdiction to substitute the names of the legal representatives in place of Chand Mohammed. In support of this contention Mr. Balia has referred to the following decisions:-- (a) Veerappa Chetty v. Tindal Ponnen, (1908) ILR 31 Mad 86. (b) Ramprataip Brijmohandas v. Gavrishanker Kashiram, AIR 1924 Bom 109. (c) Bai Pani Vankar v. Madhabluu Gelabhai Patel, AIR 1953 Bom 356. (d) Hindustan General Insurance Society Ltd. v. Kedamarayan, AIR 1956 Madh Bha 76. (e) Municipal Council, Calicut v. Thazel Puthan Purayil Kunhipathumma, AIR 1933 Mad 454. (f) Parameswara Iyer Krishna Iyer v. Krishna Iyer Venkitachalam Iyer, AIR 1953 Trav-Co 473. (g) Abdul Waned v. Shukdev Wasti, AIR 1963 Tripura 44.
(3.) On the other hand Mr. Parikh has placed reliance on the following decisions : (h) Gopalakrishnayya v Adivi Lakshmana Rao, AIR 1925 Mad 1210 (FB). (i) Alabhai Vajsurbhai v. Bhura Bhaya, AIR 1937 Bom 401. (j) Doddamallappa Channabasappa Kari v. Gangappa Shiddappa Gulganji, AIR 1962 Mys 44. (k) Jagarnath Raut v. Commr. of Buxar Municipality, AIR 1961 Pat 480.;