ORDER :

The question fell for consideration in this application is whether it is mandatory to seek leave of a Court to file an appeal by a legal representative of a deceased person who is a party to any proceeding be it a suit or an appeal.

This application under Section 151 CPC is filed to grant leave to file an appeal against the decree and judgment, dated 13.12.2021, passed in O.S.No.69 of 2006 on the file of the Court of VI Additional District Judge, Visakhapatnam, as legal representatives of the deceased 1st defendant.

2. Heard Sri M. Radhakrishna, learned counsel appearing for the petitioners/appellants.

3. The petitioners 2 to 4 are allegedly the wife and sons of late Ch. Vara Sankara Prasad, who is the 1st defendant in O.S.No.69 of 2006. The suit was filed by the plaintiffs for declaration of their ownership over the plaint schedule property and for eviction of the defendants etc., from the plaint schedule property and also for consequential permanent injunction etc. The 1st defendant contested the suit pleading title in himself. The 1st defendant died on 22.05.2021 pending the suit. The suit was heard on 01.12.2021 and the judgment in the suit was pronounced on 13.12.2021. It seems the death of the 1st defendant was reported to the trial Court, vide memo G.R. No.920 of 2021, dated 05.07.2021 along with particulars of the legal representatives.

4. As per Order XXII Rule 6 CPC, there shall be no abatement by reason of death of either party between the conclusion of the hearing and the pronouncing of the judgment and the judgment so pronounced without impleading the legal representatives shall have the same force and effect as if it had been pronounced before the death took place.

5. However, in the present case, Order XXII Rule 6 CPC cannot be applied to save the validity of the judgement passed in the suit, since the death of the 1st defendant occurred prior to hearing and was also brought to the notice of the Court concerned. The defendants 2 to 4 are the builders and they have not contested the suit. It is only defendants 1 & 5 who filed their written statements. The petitioners 2 to 4 contend that on the death of the 1st defendant, the right to prosecute the suit survived against the estate, and therefore, they are necessary to be brought on record as legal representatives of the deceased 1st defendant. Since the trail Court granted the decree in favour of the plaintiff, the petitioners contend that they need to challenge the decree & judgement in appeal as the legal representatives of the deceased 1st defendant. Since they are not the original parties in the suit, they filed this petition seeking leave to file the appeal.

6. However, learned counsel submitted that it is not required to file a separate application seeking leave of the appellate Court to file an appeal by the legal representatives of a deceased party and in this regard, he submitted that neither Section 96 CPC which speaks about filing of the first appeal nor Section 100 CPC which speaks of filing a second appeal providesthe persons who shall file the appeal. But, Section 146 CPC provides that save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. Therefore, he argued that since filing of an appeal under Section 96 CPC is a matter of right of any party to the suit, reading Section 96 CPC and 146 CPC together, the legal representatives, being persons claiming under the deceased party to the suit, can file appeal without seeking any leave of the Court. To fortify his contention, he further submitted that as held by the Court of Chancery Division vide In re Securities Insurance Company, (1894) 2 CH 410, it is settled practice that a person who is a party can appeal without any leave, whereas any person who is bound by or aggrieved by the order or