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1 - 3 of 3 (0.29 seconds)Naimuddin Biswas And Ors. vs Maniruddin Lashkar And Ors. on 10 May, 1927
Another case relied on before me is the decision of the Calcutta High Court in Naitnuddin Biswas v. Maniruddin Lashhw A.I.R. 1928 Cal. 184 Here, there was a, decree against four landlords, They appealed, one of them died and his heirs were not brought on record. It was held that the whole appeal abated. There the rule was laid down that if the appeal can be heard in the absence of the deceased appellants the appeal can proceed, but whether the appeal can be so heard or not depends upon the nature of the suit. In this case also there was no order under Order 1, Rule 8. In my opinion none of the cases cited governs the present case. It seems to me that where sanction was originally given by the Court to a certain number of persons either to prosecute or defend a suit and one of them dies, his heirs are not competent to prosecute or defend the suit, because the sanction was accorded to certain individual persons co nomine and not to their heirs, and, unless the. order can be construed so as to confer the right on the legal representatives also, the right does not survive. In such a case, the proper procedure seems to me for the remaining persons to apply to the Court for directions. They should bring to the notice of the Court that one of the persons to whom the original sanction was given is dead and request the Court for directions whether the Court will be pleased to permit the remaining persons to continue to prosecute or defend the suit, or, if it thinks that the original number is necessary, directions should be given authorising an additional person, who need not necessarily be the legal representative of the deceased person, to join the survivors; and when the Court gives the necessary orders the suit will proceed. To say in all such cases, first, that the legal representatives should be brought on record and secondly, that if they are not brought on record the suit abates, seems to defeat the ends of justice. In the present case I give sanction to the remaining four appellants to proceed with the appeal on behalf of their party and disallow the preliminary objection.
A. Srinivasulu Chetti vs Palamkula Guraviah And Anr. on 1 December, 1926
Another case mentioned is Srinivasulu Chelti v. Guraviah (1926) 52 M.L.J. 460. In that case several plaintiffs obtained a decree for joint possession. There was an appeal, one of the plaintiffs-respondents died and his legal representatives were not brought on record. This case cannot help the respondents in the present second appeal. It being a joint decree for possession in favour of several parties, all of them or their legal representatives ought to be respondents on the record. There was no order under Order 1, Rule 8 of the Code of Civil Procedure in that case.
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