ORDER

1. LEAVE GRANTED.

2. HEARD PARTIES AT GREAT LENGTH.

3. THE ONLY CONTENTION TAKEN UP IN THIS APPEAL IS THAT THE FIRST RESPONDENT, IN THE APPEAL BEFORE THE HIGH COURT, HAD DIED DURING THE PENDENCY OF THAT APPEAL. IT IS CONTENDED THAT HIS HEIRS WERE NOT BROUGHT ON RECORD AND, THEREFORE, THE APPEAL BEFORE THE HIGH COURT HAD ABATED. IN SUPPORT OF THIS CONTENTION RELIANCE IS PLACED ON ORDER 22 RULE 4 OF THE CODE OF CIVIL PROCEDURE AS WELL AS THE JUDGMENTS OF THIS COURT IN THE CASE OF MITHAILAL DALSANGAR SINGH V. ANNABAI DEVRAM KINI1 AND IN THE CASE OF AMBA BAI V. GOPAL2. IT IS SUBMITTED THAT AS THE APPEAL HAD ABATED, THE JUDGMENT DELIVERED BY THE HIGH COURT IS NON EST AND CANNOT BE ENFORCED.

4. THOUGH THE ARGUMENTS ARE ATTRACTIVE ONE MUST ALSO KEEP IN MIND ORDER 22 RULE 10 OF THE CODE OF CIVIL PROCEDURE. IT IS OBLIGATORY ON THE PLEADER OF A DECEASED TO INFORM THE COURT AND THE OTHER SIDE ABOUT THE FACTUM OF DEATH OF A PARTY. IN THIS CASE WE FIND THAT NO INTIMATION WAS GIVEN TO THE COURT OR TO THE OTHER SIDE THAT THE FIRST RESPONDENT HAD DIED. ON THE CONTRARY A COUNSEL APPEARED ON BEHALF OF THE DECEASED PERSON AND ARGUED THE MATTER. IT IS CLEAR THAT THE ATTEMPT WAS TO SEE WHETHER A