IMPORTANT POINT
Before proceeding with second appeal, High Court must decide the question of legal representative.

JUDGMENT :

N.V. Ramana, J.

These appeals by special leave are directed against an interim order dated 24.2.2009 passed by the learned Single Judge of the High Court of Judicature at Patna in Second Appeal No. 169 of 1993.In the said appeal, while dealing with I.A. No. 7162 of 1999 and I.A. No. 8089 of 1999, filed by two applicants and each of them claiming to be the sole legal representative of the deceased appellant No.1 before the High Court, the High Court has allowed both the applications of rival contenders and permitted both of them to raise their respective arguments in the subject matter of pending civil suit.

2. The genesis of the case is traceable to a Suit filed by the respondents herein against one Swami Sheo Dharmanand and two others seeking the relief of declaration that they are trespassers and for consequential relief of grant of permanent injunction. Consequent to its dismissal, plaintiffs-respondents filed First Appeal before the Sub-Judge, Bhabhua which was allowed. The aggrieved defendants preferred Second Appeal before the High Court. During the pendency of Second Appeal before the High Court, one of the original defendants i.e. Swami Sheo Dharmanand (Appellant No. 1 before the High Court) died. Afterwards, the appellants herein, filed their separate I.As. in the Second Appeal seeking to implead themselves as actual chela and successor of the deceased. The High Court, by its order dated 2.7.2008 remanded the matter to the trial Court to submit a report under Order 22 Rule 5of the Code of Civil procedure, 1908 [hereinafter referred as ‘CPC’ for brevity]. The relevant portion of the order dated 2.7.2008 passed by the High Court reads:

“It is necessary to determine the question of legal representative of deceased appellant. Order 22 Rule 5 CPC provides procedure for determination of above question. It runs as follows :-

5. Determination of question as to legal representative :- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:-

Provided that where such question arises before an appellate Court, that court may, before determining the question, direct any subordinate court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the appellate court may take the same into consideration in determining the question.

Thus, in view of the above provision, the matter of determination of legal representative of deceased appellant No.1 Sheo Dharma Nand @ Deo Shankar Tiwary is sent to the lower court i.e. Sub Judge-I, Bhabua who will try the question and return the records to this court along with his findings and evidence, if any, within two months of receipt of this order.”

3. The trial Court after taking into consideration the relevant issues involved in the case both on factual and legal aspects has given a report dated 4th December, 2008 that Swami Satyanand Maharaj (appellant in Civil Appeal No. 6318 of 2010) is the legal representative of the deceased and sent the report to the High Court. Aggrieved thereby, the applicant (appellant in C.A. No. 6319 of 2010) has filed his objections before the High Court and in response to the same, the other applicant (appellant in C.A. No. 6318 of 2010) has filed counter affidavit. After hearing the parties at length, the High Court has passed the impugned order allowing the I.As of both the applicants and permitted both of them to participate in the pending second appeal proceedings. It is appropriate to extract here Paragraph 19 of the impugned order which is in the following terms:

“In the aforesaid facts and circumstances, this Court feels it necessary and proper to dispose of all the three applications, namely, I.A. No. 7162 of 1999, I.A. No. 8089 of 1999 and I.A. No.357 of 2005 with a direction that both the applicants, namely, Swami Triyoganand alias Ram Narayan Pr