P.K.BALASUBRAMANYAN,.J. - (1.) IT is brought to the notice of this Court that even before the appeal was heard and the judgment was rendered by the lower appellate Court, respondent No. 17 before that Court had died. What is attempted in this Second Appeal is to file an application for bringing on record the legal representatives of that respondent without giving them an opportunity to participate in the proceeding before the lower appellate Court. It appears to me that it is not permissible to do so on the Scheme of the Code. As far as respondent No. 17 is concerned, the decree of the lower appellate Court is a decree against a dead person, which the Supreme Court has held, is void. At least as far as respondent No. 17 is concerned, the decree of the lower appellate Court must be taken to be void. The remedy available in such a case is to approach the lower appellate Court, especially in the context of the fact that the appellant herein was the appellant in that Court, to get the decree of the Court reopened and to make the necessary applications for bringing on record the legal representatives of deceased respondent No. 17 along with the other necessary applications for setting aside the abatement and for condoning the delay in filing the applications. They cannot be brought on record in the Second Appeal, as if the concerned respondent died after the decree of the lower appellate Court or at least after the hearing of the appeal and the reserving of the order in the first appeal.
(2.) LEARNED counsel relied on Rule 96 of the High Court of Jharkhand Rules. 2001 in support of his contention that he is entitled to implead the legal representatives, even at the second appellate stage, notwithstanding the fact that they were not impleaded in the lower appellate Court and given a chance to contest the appeal. I think that Rule 96 of the High Court of Jharkhand Rules runs counter to the Scheme of the Code and the Scheme of Order XXII of the Code. Moreover, at best, Rule 96 confers discretion in this Court, sitting in second appeal, to allow such an impleading. Considering that the exercise of such discretion would not be proper, I am satisfied that I should not exercise that discretion, even assumingihat Rule 96 can be invoked for the purpose of impleading the legal representatives at this stage without bringing them on record in the lower appellate Court and obtaining a decree in their presence. Therefore, I decline the request of the appellants to implead the legal representatives in the Second Appeal, but without prejudice to their right to move the lower appellate Court to have the decree reopened and to have the legal representatives brought on record. Counsel for the appellants submits that this would only mean that the appeal in the lower appellate Court has abated against respondent No. 17 and no relief could be obtained against his legal representatives in the Second Appeal. That may be so; but then, the question will remain whether the Second Appeal can be proceeded with at all, in the absence of respondent No. 17, considering the nature of the reliefs claimed in the suit and the Second Appeal and in the light of the decision reported in State of Punjab v. Nathu Ram, AIR 1962 SC 89. indicating that there cannot be two inconsistent decree, one against the deceased and one against the others. But that question can be considered at the appropriate time but the application for impleading the legal representatives of deceased respondent No. 17 now made, will stand dismissed.
(3.) I also make it clear that this order will not stand in the way of the appellants taking such steps as are permissible in the lower appellate Court to have the decree reopened and to have the legal representatives of respondent No. 17 brought on record in that Court.;