Full Judgment
Gopal Kishan Sharma, J.
1. An application under Order 22, Rules 9 & 10A, read with Section 151 CPC has been filed by respondent No. 1 Ramdas. In this application it has been mentioned that respondent Ramdas filed a suit for rent and ejectment against Nanhekhan appellant and Kamruddin respondent No. 2. That suit was decreed against Nanhekhan and Kamruddin. Then an appeal was preferred by Nanhekhan and Kamruddin in the court of Additional District Judge, Gangapur City (for short here in after, 'the ADJ'). It is alleged that using the pendency of the first appeal; Kamruddin expired on 16th Jan., 80. No application was filed by either Nanhekhan or anybody else to bring the legal representatives of the deceased Kamruddin on the record. The first appellate court rejected the appeal of Nanhekhan and Kamruddin and maintained the judgment and decree passed by the lower court. The present second appeal has been filed by Nanhekhan and Kamruddin has been shown as proforma respondent No. 2.
2. Mr. Tibrewal has filed a reply to the application filed by respondent No. 1. It has been admitted that Kamruddin died on 16th Jan., 80. It is contended that it was not necessary to bring the legal representatives of Kamruddin on record, because, he was never in possession of the disputed property. This fact is admitted that Kamruddin died during the pendency of the first appeal, and the learned ADJ rejected the appeal filed by the both. The argument on behalf of the respondents is that appellant Nanhekhan who is the son-in-law of Kamruddin, had the knowledge of the death of Kamruddin, and therefore, the legal representatives of Kamruddin ought to have been brought on the record, and as the legal representatives have not been brought on the record, the whole appeal in the first appellate court had abated, and as such, the decree passed by the first appellate court, is no decree in the eye of law During the course of argument, it was argued that the question of abatement is to be decided by the first appellate court, because, Kamruddin died during the appeal in the first appellate court.
3. In this view of the matter, the judgment of the first appellate court is set aside the case is remanded back to the first appellate court for deciding the legal aspect on the death of Kamruddin. The first appellate court would decide whether on the death of Kamruddin and without bringing his legal representatives on the record, the appeal should have proceeded or abated. The status quo as it exists today, shall continue. There will be no order as to costs.