In case of death of an appellant during the pendency of an appeal, Rule 3 or Rule 4 of Order 22 of the Code of Civil Procedure, 1908 applies, and not Rule 10.

Kanhaiya Singh, J.

1. This case has been referred to a Full Bench because of the important question of law involved in it.

2. The material facts are these. The plaintiffs instituted Partition Suit 5 of 1934 in the Court of the Subordinate Judge, Monghyr. A preliminary decree was passed, and on 30th March, 1943, a final decree was drawn up. In February 1944, the plaintiffs obtained delivery of possession pursuant to the final decree. Thereafter, they instituted the present money suit on 20th September, 1943, claiming mesne profits from the defendants first party for the years 1345 to 1350 fasli (1938 to 1943). On 20th January, 1945, a preliminary decree was passed holding that the defendants were liable for mesne profits and directing an enquiry into the mesne profits by a pleader commissioner appointed by Court. From this preliminary decree the defendant took an appeal to this Court, numbered as First Appeal 98 of 1945, which was eventually dismissed on 19th January, 1948. Thereafter, a pleader commissioner was appointed to assess mesne profits, and he, in due course, submitted his report on 14th April, 1949. The parties preferred objection, and, after disposal of their objections, a final decree was passed On 28th July, 1952. Against that decree the present appeal was filed by the defendants on 24th October, 1952, challenging the quantum of mesne profits and the basis of. calculation. There were four appellants, of whom Baijnath Ram and Brijmohan Ram, appellants 1 and 2 respectively, are brothers. During the pendency of this appeal, Brijmohan Ram was murdered on 20th December 1960. He left behind him his son Keshwardev Marwari and two grandsons named Sajjan Kumar and Shiva Kumar. No application for substitution of his heirs, as contemplated by Rule 3 of Order 22 of the Code of Civil Procedure was filed. An application was however, filed under Rule 10 of the said Order on 25th September, 1961, for bringing on record the heirs and legal representatives of the deceased appellant; but this application, it will be seen, was filed long after the expiration of the period of limitation prescribed by Article 171 of the Limitation Act for presentation of an application under Rule 3 aforesaid.

3. The question mooted in this appeal is whether the application for substitution of the heirs of the deceased appellant is governed by Rule 10 or Rule 3 of Order 22 of the Code. Learned counsel for the appellants maintained that Rule 10 applied, whereas Mr. S. N. Datta representing the respondents urged that Rule 3 governed it. If Rule 10 applies, there is no question of abatement at all; on the other hand, the appeal will abate respecting the interest of appellant No. 2, if Rule 3 is held to be applicable. Learned counsel for the appellants relief on a Bench decision of this Court "in Lal Behari Gorain V/s. Ishwar Gorain, AIR J956 Pat 376. It fully supports his contention. There is, however, a contrary Bench decision of this Court in Jamuna Rai V/s. Chandradip Rai, AIR 1961 Pat 178. In the latter case, the decision in the case of Lal Behari Gorain, AIR 1956 Pat 376 was not followed. There is an apparent conflict between these two decisions of this Court, and, in fact, it is for the resolution of this conflict and for an authoritative opinion, on the applicability of Rule 3 or Rule 10 in the light of the facts of this case that the present Full Bench has been constituted.

4. Before addressing ourselves to the questions raised, it would be necessary to notice some of the relevant provisions of Order 22 of the Code. This Order deals with the creation, assignment or devolution of interest of a party to the suit by his death, his marriage, his insolvency, or otherwise, during the pendency of the suit. I may state here that by virtue of Rule 11 the provisions of this Order apply to appeals also. Therefore, wherever the word plaintiff or defendant is mentioned, the word plaintiff shall be deemed to include an appellant and the word defendant a