JUDGMENT - Y. S. TAMBE J. :

This application is made by Sampatlal under S. 151 of the Civil Procedure Code for the rehearing of First Appeal No. 39 of 1946 decided by a Division Bench of the then High Court at Nagpur on 30-12-1954. Though it is not so stated in the application, Shri Halve who appears before us for Sampatlal contends that the decision of the Nagpur High Court and the decree made in that appeal were null and void on account of a procedural defect.

(2) It is necessary to set out certain facts in detail. The suit out of which this appeal arises is between the members of two branches of the family which at one time were joint. The following family tree would disclose their relationship;

(See relationship on next pace )

(3) It would be seen that the present applicant was Plaintiff No. 5 to the original suit. It is not disputed before us that Dulichand, Punam-chand, Gulabchand, Mangalchand and Sampatlal formed a joint Hindu family of which Dulichand was the karta during his lifetime. These members of the joint family instituted a suit against the male members of the other branch for the recovery of certain property which was alleged to have been left behind by Jadao Bai. The plaintiffs case was that after the death of Jadao Bai Nanhoolal succeeded to that property. That property however was kept by Nanhoolal in deposit with Fulchand. After Nanhoolals death, the plaintiffs succeeded to that property and demanded its return from Ful chand. But as Fulchand refused to hand over pos session of the property they instituted this suit for obtaining possession thereof. In the suit Duli chand acted as a next friend of the present applicant Sampatlal. Sampatlal was at that time said to be about 7 years old. The suit was instituted in the year 1944. It failed in the trial court and was dismissed on 12-11-1945. An appeal was preferred to the Nagpur High Court by the Plaintiffs against

GUMANCHAND

Hirachand (d. 1927) Nanhoolal (d. 1040)

Fulchand Suganchand JadaoBai Dulichand Punam Gulab Mangal Udakaran

(Deft. 1) d. 1927) (d. 1918) (Plff. 1) chand chand chand

=widow Sanderbai (Plff. 2) (Plff. 3) (Plff. 4) Sampatlal

(Plff. 5

Jugraj (Deft. 2) Petitioner

before us.)

the judgment and decree of the trial court. Dulichand at that time was alive and acted as a next friend of Sampatlal in the appeal. It appears that both Dulichand and Punamchand, original Plain tiffs Nos. 1 and 2, died some time prior to 1954. We should have mentioned earlier that the appeal was presented by Shri A. L. Halve on behalf of all the Plaintiffs.

(4) On 4-1-1954 an application was made to the Nagpur High Court by Shri Halve on behalf of the remaining appellants Gulabchand, Mangalchand and Sampatlal stating therein that Dulichand was dead and therefore his name be struck off Shri Halve also made another application on 17-4-1954 stating that the second Plaintiff Punamchand was also dead and therefore his name should be struck off. Both these applications were dealt with in the Registry of the Court and the Registrar by his orders dated 3-2-1954 and 21-7-1954 ordered deletion of the names of Dulichand and Punamchand respectively.

(5) The appeal came up for hearing before the Court on 13-10-1954 and was heard on that date on subsequent dates, 14th and 15th October 1954 and the judgment was delivered on 30-12-1954. This appeal was also argued by Shri Halve on be half of all the appellants. It was not pointed out by him at the hearing that on account of the death of Dulichand and continuing minority of Sampatlal it was necessary to appoint a next friend of Sampatlal, nor was it stated before the Court by Shiri Halve that he was not appearing for Sampat lal. The appeal proceeded on the footing that Shri Halve was arguing the appeal for all the ap pellants. The appeal was dismissed by the Nagpur High Court and the decree was signed by Shri Halve on 7-1-1955. On 30-3-1955, an application for leave to appeal to the Supreme Court was made in the High

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