Satya Brata Sanyal, J.

1. This second appeal is at the instance of the plaintiffs. Plaintiffs suit was decreed. Defendants preferred an appeal in the court of appeal below. The appeal was allowed on the sole ground that the decree passed by the trial court is a nullity. It was so held because the heirs of defendant 5 were not substituted in suit upon the death of the said defendant in the year 1972. It was also held that the suit became incompetent by virtue of said inaction. The impugned judgment dismissing the appeal has to be read along with the order passed by the lower appellate court dated 17-3-1979.

2. Learned counsel for the appellants contends that the judgment of the lower appellate court is wholly erroneous in law. The question framed at the time of admission of this appeal is, whether it was at all incumbent upon the plaintiff to file a substitution petition separately in the suit when such a step was taken in connected restoration case where the heirs were substituted. The second question framed was whether the deceased defendant was at all a necessary party and whether on account of non-substitution of the heirs, the suit became incompetent. In my opinion, if