When a party dies during the pendency of a suit and no application is made to substitute his heirs or to set aside the abatement, the proper course of action for the appellate court is to decide the appeal on merits as well as the question of abatement.

Ramratna Singh, J.

1. This application is directed against an order of the first Additional subordinate Judge of Arrah setting aside the Judgment and decree of the trial Court and remanding the suit for disposal according to law.

2. The petitioners were defendants along with one Ramkhelawan Pandey and opposite party 2 to 4. Opposite party No. 1 was plaintiff in the suit which was for a declaration that certain plots of land measuring 2.94 acres constituted the ancestral land of the plaintiff. The plaintiff sought for confirmation of possession over the suit land and prayed for a permanent injunction restraining the defendants from interfering with their possession over the same. The suit was dismissed by the learned Munsif, Buxar, on the 30th August 1961. Then, the plaintiff preferred an appeal. Sometime in the beginning of 1962 the process-server, who had gone to serve notice of the appeal on the respondents, reported that respondent No. 3, that is, Ram Khelawan Pandey was dead. By order No. 8 dated the 28th February 1962 the learned District Judge of Shahabad directed the appellants to take steps with regard to respondent No. 3 by the 6th March 1962. On that date the plaintiff-appellant. Diljan Mian, filed a petition that the name of Ram Khelawan Pandey should be expunged from the memorandum of appeal as it was learnt from enquiry that he was dead. The date of death was not disclosed in this petition nor any request made for time to make enquiries regarding his heirs. After the service of notice, the other respondents appeared in the appeal on the 7th April 1962 and some of them filed a petition that Ram Khelawan Pandey died on the 25th January 1962 at village Mahuarpatti Bahudri, and that Diljan Mian had knowledge of his death immediately, he being a close neighbour of Ram Khelawan pendey. It was further stated in that petition that, inasmuch as no petition for substitution of the heirs or legal representatives of Ram Khelawan Pandey had been filed, the whole suit abated. No rejoinder was filed by Diljan Mian to this petition.

3. It was admitted before the first appellate Court that Ram Khelawan Pandey died on the 25th January 1962, that is, before the hearing of the title suit commenced, but Relying on the decision of a Bench of this Court in Ram Saran Ahir V/s. Prithvi Nath Singh, AIR 1952 Pat 267 the Court below held that the abatement matter could be decided only by the trial Court, and, therefore, the appeal was allowed and the case was remanded to the trial Court.

4. The learned Advocate for the petitioners has challenged this view of the Court below and submitted that the first appellate Court ought to have finally decided the appeal on merits as well as the substitution matter, This submission is well founded. The learned Advocate for the opposite parties, however, supported the finding of the Court below relying on the said decision in Ram Saran Ahirs case, AIR 1952 Pat 267 but the facts of that case were absolutely different. Two plaintiffs, namely, Ramdeo Singh and Prithvi Nath Singn, members of a joint Mitakshara family, instituted a suit for declaration of title and recovery of possession in respect of certain plots of land. The suit was decreed in full by the trial court. There was an appeal by the contesting defendants to the District Judge in which both Ramdeo and Prithvi Nath Singh as respondents appeared on the 30th January 1946. Ramdeo Singh, however, died near about that time but the fact of his death was not brought to the notice of the District Judge and he allowed the appeal in part on the 15th September 1948 In Ignorance of Ramdeos death. From the appellate Court decree Prithvi Nath Singh alone preferred a second appeal to the High Court. Along with the memorandum of appeal he filed an affidavit sworn by himself in which he stated that Ramdeo Singh had died on the 1st January 1948. This affidavit was supported by a certified copy of the death register. At the hearing of the second appeal it w