- (1.) THIS second appeal which came up for hearing before a Division Bench of the Board of Revenue had been decided or. 26. 10. 59. One of the contentions raised by the learned counsel for the appellant before the learned Bench was that Thakarsi the father of the four appellants had died during the pendency of the trial of the suit and no formal order of the court about making the appellants as legal representatives of the said deceased Thakarsi was made and in consequence whereof a decree was passed against a dead person which was a nullity in the eye of law. The learned Bench examined this contention and held that "from the record it was clear that Thakaria had died during the pendency of the suit, that the appellants being the sons of the deceased Thakaria appeared in the trial court and defended themselves through a counsel. Thus in effect the appellants were brought on record in place of the deceased Thakaria. There was merely an omission to record a formal order regarding this substitution which at the most can amount to an irregularity. It did not affect the progress of a trial nor prejudiced the case of the appellants who contested the suit as effectively and thoroughly as if they had been formally brought on record. ". Thereafter the learned Bench thought that while making the said! observation and deciding the appeal it did not take into consideration the legal provision contained in O. 22 R. 4 C. P. C. and also did not discuss the case law on the subject in the said judgment. Accordingly the decision dated 26. 10. 59 was suo motu reviewed by the learned Bench and the appeal was fixed up for hearing on a date of which due notices were given to the parties and their counsels.
(2.) BOTH the learned counsel argued the case at some length. The contention of Shri Mathur counsel for the appellants is that an application having already been made on 23. 1. 58 by the plaintiff-respondent intimating the court about the death of the defendant Thakaria on 8-12-57 and also having requested to implead the present appellants as his legal representatives they being the sons of the said deceased, it was the duty of the court to have made a formal order about the substitution of the names of the appellants in place of the deceased defendant and that an omission to have done so was fatal to the proceedings and the decree passed against the deceased Thakaria was a nullity. It was pointed out that even if the appellants had engaged a counsel and appeared during the subsequent stage of the proceedings by examining and arguing the case, the formal and material defect in the procedure namely the omission to bring the legal representatives on record could not be cured in the exercise of inherent powers either under Secs. 151 or 153 C. P. C. A number of authorities on this point were cited which we will presently discuss. The contention of the learned counsel for the respondent was that such a defect even if it resulted in a decree against a dead person was not fatal to the case and since no prejudice was caused to the parties specially the appellants, this court was fully competent to rectify the error and dispose of the appeal as if it was against a decree passed against the appellants as legal representatives of the deceased. He also relied on several rulings of the various High Courts which will also be examined in the following paragraphs. Shri Mathur relied on 1924 Lahore page 33, 1928 Lahore page 784, 1929 Calcutta 527, 1952 Patna page 267, 1954 Ajmer page 80 and 1956 Patna 373. In 1924 Lahore page 33 it was found that one of the defendants died. The plaintiff applied to the trial court for an order that he himself was the legal representative of the deceased defendant and the Court recorded directions that the other defendants should reply to this application but no written replies were received and no order was passed on it. The deceased defendant continued to be shown as a defendant and the final decree was passed against him and the other defendants. It was held that it was obviously illegal for the court below to continue to hear the suit against a dead person whose death had been brought to its notice and to pass a decree against that person. The decree was accordingly set aside and the case was remanded to the trial court for re-decision after disposal of the application about impleading as defendants those persons whom the court found to be the legal representatives of the decease defendant. In 1928 Lahore 784, it was observed that a decree passed after the death of a party to the suit or appeal is not an absolute nullity. The mistake can be rectified if the court sets aside the proceedings taken after the death of the deceased party and directs that the case be retried in the presence of his legal representative from the stage which it had reached immediately before the date of the death. This procedure places all the parties to the litigation in the same position in which they had been if the legal representative had been impleaded at the proper time. Again 1929 Calcutta page 527, it was held that an order passed against a dead person would be a nullity, but where an order was passed in favour of a dead person, it is not altogether and in all circumstances a nullity. In 1952 Patna page 267 it was observed that one of the respondents to an appeal had died and the appellate court in ignorance of such death passed a decree without the heirs of the deceased respondent being brought on record within time. The surviving respondent filed a second appeal on the ground that the appeal in the lower appellate court could not proceed after it had abated on the death of the deceased respondent. The other side filed an application to set aside the abatement on the ground that they were ignorant of the death till the filing of the second appeal. The court set aside the decree of the appellate court and restored that of the trial court. On Letters Patent appeal it was held that the proper course in the circumstances would be to set aside the decision of the second appellate court and send the application for setting aside the abatement to the first appellate court and for disposal according to law. In 1954 Ajmer page 80, it was held that where the procedural error has been brought to the notice of the trial court, the error and the mistake should be rectified and this rectification should be made even if no actual prejudice has been caused. It was held that in the circumstances of the case the omission to bring the legal representatives of the deceased defendant on record was a procedural mistake which had to be rectified but as there was great delay in bringing the error to the notice of the Court, the rectification should be made on payment of substantial costs. In 1956 Patna page 373 it was observed that where during the pendency of first appeal, one of the respondents dies and the case cannot proceed by reason of the death of one of the parties, the whole appeal abates and a decree passed in respect of the dead person without impleading his legal representatives is a nullity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the proper procedure to follow for the second appellate court is to set aside the decree of the Court of appeal below on the ground that it was passed in respect of a dead person and to remand the appeal to the Court of appeal below in order to deal with the application for setting aside abatement and substituting the heirs of the dead respondent. On the basis of these authorities Shri Mathur argued that from the trend of decisions referred to above, it was clear beyond doubt that where during the pendency of a suit or appeal a party to the proceedings dies and no legal representative is brought on record and yet a decree is passed against the said dead person even though bis legal representatives may have of their own accord taken part in the proceedings and no prejudice was caused to them, the omission on the part of the court for not recording a formal order about the substitution of the deceased by his legal representatives was a material irregularity and the provisions of O. 22 R. 3 were attracted, and that such a decree if passed against the said dead person would be a nullity and the case should be remanded for fresh proceedings by impleading the legal, representatives. We do not dispute the correctness of this proposition of law, but in the present case the facts are different. The plaintiff respondent had made an application within time for bringing on record the legal representatives of the deceased defendant, a notice was given to the present appellants who were named as legal representatives of the deceased. They engaged a counsel and took full part in the proceedings, but somehow the trial court omitted to record a formal order about the substitution of their name and through sheer inadvertance a decree was given in the name of the deceased-defendant. The point then arises will such a decree be a nullity merely because through a patent error of the court it was passed against a dead person, or will it be deemed to have been passed against the legal representatives whose name though not formally brought on record, did throughout contest the suit. Shri Sharma referred to 1893 Allahabad Weekly Notes page 181 wherein almost similar circumstances arose. In that case on the death of one of the defendant no application to bring the legal representatives were filed, but Vakalatnamas were filed on behalf of the legal representatives with the result that both the parties took part in the further proceedings as if the legal representatives were brought on record, though an order to bring legal representative was not expressly passed. So the objection hat the legal representatives were not brought on record was considered to be merely a technical one and overruled. In 1937 Bombay page 400 it was observed that it is no part of the appellant's duty to take necessary steps to carry out the Court's Order for the substitution of the name of the heirs of the deceased respondent who are properly served with notices. It is the duty of the Court to correct the record of the Court in terms of its order. This is a ministerial function which the Court's establishment is charged to perform. If it is not performed or neglected, the fault will not lie with the appellant. In 1954 Mysore page 65, which is a Full Bench decision, it was held that under O. 22 R. 3 all that a person desirous of proceeding with the case has to do is that he should make an application. The further acts are left to the Court. Where no order is passed by the Court and the applicant also did not press the need for a formal order the omission on the part of the applicant will not take away his right to proceed with the case as there is no duty cast on him by the rule to remind the Court of observance of the rules. . . . . . . . . . . . . . . Secs. 152 and 153 provided the cheap and speedy remedy and the Court had inherent jurisdiction to correct the mistake. In 1958 Madhya Pradesh, 307 it was observed that the party died during the pendency of appeal; an application was made for substitution of two legal representatives on record, notice was also issued but no formal order of substitution was passed with the result that the name of the deceased party appeared in the appellate decree. It was held that sec. 153 C. P. C. was wide enough to permit action to be taken to regularise the defective procedure of the Court; that in the circumstances of the case all that remained to be done was a formal order for bringing the legal representatives as parties to the appeal who did appear and conduct it. In view of this, the court could order correction of the memorandum of appeal and the decree even at that late stage u/ss. 151 and 153 C. P. C. as it did not involve more than a correction of the cause title of the petition for leave to appeal. In 1958 All. , 311 in an almost similar case it was held that the court should itself order for substitution and if the name of deceased person remained in the plaint, it was the fault of the court itself for which the plaintiff could not be penalised. These decisions evidently lay down the rule of law that under O. 22 R. 3 C. P. C. all that the person desirous of proceeding with the case has to do is to make an application. The further acts are left to the Court. Where no order is passed by the court and the applicant also does not press the need for a formal order the omission on his part will not take away his right to proceed with the case as there is no duty cast on him by the rule to remind the Court. Where an application, as in the present case, to add a person as the legal representative of a deceased party is filed, but the court without expressly adding him as a party allows him to prosecute the suit or appeal the petitioner will be deemed to have been brought on record. Coming now to the facts of the case it is clear beyond doubt that during the pendency of the suit Thakaria the father of the present appellants had admittedly died and an application was made by the respondents-plaintiff bringing this fact to the notice of the court with a prayer to bring the appellants on record as legal representatives of the deceased. It was admitted at the Bar that the appellants were the real sons and the legal representatives of the said deceased Thakaria and that they were represented throughout by a counsel who examined the witness and continued to take part in proceedings upto the passing of a decree. A notice was also given by the Court to the respondent to show cause why the appellants be not made the legal representatives of the deceased. The court omitted to record a formal order about bringing on record the appellants somehow as legal representatives of the deceased, and by sheer mistake a decree was passed against Thakaria instead of his legal representatives. This omission in our opinion could be rectified at any stage of the proceedings whether before the passing of the decree or even in an appellate stage in the exercise of inherent powers under secs. 152 and 153 of C. P. C. The authorities relied upon by Shri Sharma fully support this view. In this view of the matter we direct that the name of the appellants be allowed to be entered in place of the deceased Thakaria as his legal representatives and the decree against him be held as if it was a decree passed against his legal representatives namely the present appellants. On merits, the learned Bench has already held with which we entirely agree that in a second appeal a concurrent finding of fact cannot be gone into. In the result we dismiss this appeal. .;