The proper court to deal with an application for setting aside the abatement of an appeal is the court that passed the decree that is sought to be set aside.

Chatterji, J.

1. Two plaintiffs, Ramdeo Singh and Prithwi Nath Singh, who were cousins and members of a joint Mitakshara family, instituted a suit for declaration of title and recovery of possession in respect of certain plots of land with a house standing thereon. The suit was decreed in full by the trial Court. The contesting defendants then preferred an appeal to the District Court in which Ramdeo and Prithwi Nath were impleaded as respondents 1 and 2. Notices were served on them and both of them appeared, as the order-sheet shows, by a vaklatnama on the 30th January, 1948. Ramdeo Singh, however, died near about that time. But the fact of his death was not brought to the notice of the Court and it proceeded to decide the appeal in ignorance of his death. Eventually, on 15th September 1948, it allowed the appeal in part and modified the decree of the trial Court.

2. From the appellate decree Prithwi Nath alone preferred a second appeal to this Court. Along with the memorandum of appeal he filed an affidavit sworn by himself in which he stated that Ramedeo Singh had died on the 1st of January 1948. In support of his affidavit he also filed a certified copy of the death register. At the hearing of the second appeal, the point argued on behalf of the appellant there was that the appeal in the lower appellate Court could not proceed after it had abated as against the respondent Ramdeo Singh, who was a member of the joint family with the surviving respondent Prithwi Nath Singh. Sinha, J., who heard the appeal gave effect to this contention, and he disposed of the appeal in these terms:

"This appeal is, therefore, allowed, the judgment and decree passed by the lower appellate Court are set aside and the decree passed by the trial Court restored with costs throughout."

From his decision the defendants have preferred this Letters Patent Appeal.

3 It is necessary to mention here that in the second appeal a counter-affidavit was filed on behalf of the respondent, which was in substance an application for setting aside the abatement of the appeal in the lower appellate Court. With regard to this counter-affidavit, Sinha, J stated:

"A counter-affidavit is filed in this Court to the effect that the appellants in the lower appellate Court were not aware of the death of Ramdeo. That question has not been investigated and need not be investigated at this stage because this Court cannot set aside the abatement which occurred in the Court below."

4. The question for consideration in the present appeal is whether, in the circumstances, Sinha, J., was justified, not only in setting aside the decree of the lower appellate Court, but in restoring the decree of the trial Court. The position is that after the death of Ramdeo, without his legal representatives being brought on the record within the prescribed time, the appeal abated as against him. As he was a member of a joint family with the surviving respondent Prithwi Nath Singh, the appeal could not proceed, because the result would be that in case the appeal was allowed there would be two inconsistent decrees. In fact, that is the view on which Sinha, J., set aside the decree of the lower appellate Court. The result of the abatement of the appeal as against Ramdeo Singh was that the appeal could not proceed. The defendants case is that they were never aware of the death of Ramdeo and they came to know of it only after the institution of the second appeal. If that was so, they could not certainly file an application for setting aside the abatement in the Court of appeal below. By the time they came to know of the death of Ramdeo, the second appeal had already been filed in this Court, and they presented an application in this Court in the second appeal for setting aside the abatement. But the proper Court to deal with the application for setting aside the abatement was the Court of Appeal below.

5. In AMARSANGJI INDBASANGJI V/s. DESAI UMED, AIR (12) 1925 Bom 290, the appellant in the lo