ORDER
1. An application has been filed for bringing on record the legal representatives of deceased-Gulabi Devi, petitioner No. 2. The said application shows that Gulabi Devi died on February 7, 1997 when the matter was pending in the High Court. Since Gulabi Devi died when the matter was pending before the High Court, the application for bringing on record her legal representatives is not maintainable in this Court. The names of petitioners Nos. 2(a) to 2(p) in the Special Leave Petition are directed to be deleted from the array of parties. The failure to bring on record the legal representatives of Gulabi Devi is of no consequence since Gulabi Devi had been impleaded as the legal representative of Hari Ram, one of the plaintiffs, and the estate of Hari Ram is represented by petitioners Nos. 1 and 3, the other legal representatives of Hari Ram.
2. Special leave granted.
3. The parties are the descendants of a common ancestor. The plaintiffs filed a suit for partition wherein the trial Court passed a decree dividing the property equally between the two branches. Feeling dissatisfied with the said decree of the trial Court, the plaintiffs filed an appeal (Civil First Appeal No. 134 of 1986) before the High Court of Rajasthan, Jaipur Bench, Jaipur. The defendants-respondents also filed a cross appeal (Civil First Appeal No. 49 of 1986) against the decree of the trial Court. The appellants had engaged Shri R.R Goyal as their counsel to represent them in both the appeals. After the death of Shri R. P. Goyal in May, 1989 the appellants engaged Shri P.C. Jain, Advocate to represent them in both the matters. Shri P.C. Jain filed his Vakalatnama in Civil First Appeal No. 134 of 1986. Civil First Appeal No. 134 of 1986came up for hearing before the High Court on July l8, 1989, but since Shri Jain was not present in the Court when the matter was called Civil First Appeal No. 134 of 1986 was dismissed for default. The said appeal was, however, subsequently restored on December 20, 1989. The other appeal (Civil First Appeal No. 49 of 1986) filed by the defendants-respondents came up for hearing before the High Court on July 21, 1989 on which date, in the absence of the counsel for the appellants, the said appeal was decided exparte against them. The appellants submitted an application for setting aside the said exparte order dated July 21, 1989 in Civil First Appeal No. 49 of 1986. The said application was dismissed by the learned single Judge by order dated January 19, 1990 on the view that there was no Vakalatnama in favour of Shri P.C. Jain, Advocate in respect of Civil First Appeal No. 49 of 1986 and he had no authority to represent the appellants herein. Special appeal filed against the said order of the learned single Judge was dismissed by the Division Bench of the High Court by the impugned judgment dated April 23,1997. The learned Judges on the Division Bench of the High Court have agreed with the view taken by the learned single Judge that since there was no Vakalatnama in favour of Shri P.C. Jain in Civil . First Appeal No. 49 of 1986, he could not appear for the appellants herein in the said case and, therefore, he could not move the application for setting aside the exparte decree passed in the said appeal.
4. We have heard Shri S. K. Jain, the learned Counsel for the appellants. Nobody has entered appearance on behalf of the respondent even though duly served.
5. Shri S.K. Jain has relied upon Rule 437 ofthe Rules of the High Court of Judicature forRajasthan, 1952 (hereinafter referred to as 'theRules') which reads as under:
437. No fresh Vakalatnama in cross-appeals and cross-objection:
In cross-appeals, an Advocate, who has already filed a Vakalatnama for the appellant, shall not be required to file another Vakalatnama for his client as respondent in the cross-appeal.
Similar Vakalatnama filed by counsel for the appellant in the appeal and by counsel for the respondent in cross-objections will cover boththe appeal and the cross-objections.
6. The submission of Shri S. K. Jain is thatwhere cross-appeals are filed in the High Courtagainst a judgment separate Vakalatnama is notrequired to be filed in the cross-appeal and thatthe Vakalatnama filed on behalf of the appellantin the main appeal is treated as appearance onbehalf of the respondent in the cross-appeal. It isurged that since Shri P.C. Jain had filedVakalatnama on behalf of the appellants in Civil, First Appeal No. 134 of 1986 filed by the appellators, the said Vakalatnama should be treated as authority for Shri P.C. Jain to appear on behalf of the appellants in the cross-appeal, i.e., Civil First Appeal No. 49 of 1986.
7. The Division Bench of the High Court hasheld that Rule 437 does not lend any assistanceto the appellants in the present case because onJuly 21, 1989 when Civil First Appeal No. 49 of1986 was decided exparte against the respondents (appellants in Civil First Appeal No. 134 of 1986) the other appeal had already been disposed of and the Vakalatnama in that appeal could notbe treated as an authority for Shri P.C. Jain toappear in the Civil First Appeal No. 49 of 1986.In taking the said the High Court, in our opinion, has not given effect to the object underlying;Rule 437 of the Rules. The said Rule postulatesthat where a cross-appeal has been filed againstthe same judgment, separate Vakalatnama is notrequired to be filed on behalf of the respondentin the cross-appeal if the said party is the appellant in the appeal filed against the said judgmentand Vakalatnama has been filed in that appeal.Shri P.C. Jain had filed his Vakalatnama in CivilFirst Appeal No. 134 of 1986. The fact that thesaid appeal had been dismissed for default onJuly 18, 1989 would not mean that the authoritywhich was given to Shri P.C. Jain to representthe appellants are respondents in Civil First Appeal No. 49 of 1986 had ceased to be operative.;The High Court was, therefore, in error in notconsidering the application for setting aside theexparte decree filed by the appellants in CivilFirst Appeal No. 49 of 1986 on the ground thatShri P.C. Jain had no authority to appear in thatmatter and to seek setting aside of the exparte decree passed against the appellants in that appeal. The appeal is, therefore, allowed, the impugned judgment of the Division Bench of the High Court dated April 23,1997 as well as the order of the learned single Judge dated January 19, 1990 are set aside. The application or setting aside the ex parte decree dated July 21, 1989 passed in Civil First Appeal No. 49 of 1986 is allowed and the said exparte decree passed in the said appeal is set aside. Civil First Appeal No. 49 of 1986 is remitted to the High Court for consideration. It may be heard along with Civil First Appeal No. 134 of 1986 which is said to be pending in the High Court. No order as to costs.