S.B.Sanyal, J.

1. This second appeal is at the instance of the plaintiff against a judgment of reversal. The plaintiffs suit was decreed by the trial Court. Defendant No. 1 was the sole appellant who preferred an appeal and the judgment and decree of the trial Court were reversed by the lower appellate Court. As against that judgment plaintiff No. 8 has preferred this second appeal.

2. As this case will be disposed of on a very short point raised by the learned Counsel for the appellant, Mr. S.C. Ghose, J, need not take the respective cases of the parties. Suffice it to say that the suit instituted by the plaintiff was to set aside a decree said to have been obtained by playing fraud on the Court of Munsif, Lucknow. The said suit at Lucknow was for realization of rent of a cinema premise at Katihar. The case of defendant No. 1, on the other hand, was that the ex parte decree passed by the Lucknow Court was in accordance with law.

3. Mr. Ghose, learned Counsel for the appellant, has filed an additional ground today wherein he has taken the point that defendant No. lathe sole appellant in the Court of appeal below, died on 14th November, 1970, but the learned Court of appeal below, without there being any substitution of the heirs of the sole appellant, heard the arguments sometime between 27th November, 1970, and the judgment was delivered on 7th December, 1970, in favor of the appellant, a dead person. In short, what he contends is that on the day the case was heard in the Court of appeal below, the appeal was wholly incompetent because of the death of the appellant. He, therefore, submits that the judgment and decree of the appellate Court, which are against his client, should be set aside and the matter be dropped. In view of this point I refrain from going into other questions raised by him since I find that the case can be disposed of on the aforesaid question alone.

4. MR. Gupteshwar Prasad, learned Counsel appearing for the defendants-respondents contended that it is true that the sole appellant died on 14th November 1970. The defendant No. 1 being a resident of Lucknow, it seems that the lawyer at Katihar was unaware of his death and proceeded to argue the case even after his death, which resulted in ultimate decision on 7th December 1970, in favor of a dead person. He, therefore, contends that lower appellate Courts judgment and decree have got to be set aside as they stood in favor of a dead person but the case should be remanded back to the Court of appeal below giving an opportunity to the heirs of the deceased sole appellant there to get themselves substituted in his place and the appeal be re-heard. He has placed reliance upon several decisions in support of his argument; namely, (i) Amarsangji Indrasangji V/s. Desai Umed A.I.R. 1925 Bom. 290. (ii) Ram Saran Ahir and Ors. V/s. Prithivi Nath Singh and Anr. -- and (iii) Mrs. Gladys Coutts V/s. Dharkhan Singh and Ors -- , Mr. Ghose has strong objection to the course suggested by Mr. Prasad, namely, of remanding the case back to the lower appellate Court and giving of an opportunity to the heirs for getting themselves substituted, and he, in support of his submission relied upon the decisions in Munshi Singh and Ors. V/s. Babu Lai Singh and Ors. 1976 B.B.C.J. 417.

5. Having heard learned Counsel for the parties; I think there is much substance in what has been contended by Mr. Prasad. The sole appellant died on Nth November 1970, and his legal heirs had statutory right to continue the appeal in place of the deceased appellant by getting themselves substituted within 90 days from the date of death. This statutory right of the heirs were made unavailable to them because the Court of appeal below disposed of the case on 7th December 1970. The lawyer who appeared for the deceased appellant had no jurisdiction to proceed with the appeal nor had the Court jurisdiction to decide the appeal of a non-existent person. Had the Court been aware about the death of the sole