S. Shamsul Hasan, J.

1. The petitioner is the unsuccessful appellant of Second Appeal No.296 of 1971.

2. The solitary ground on which review is sought of the judgment in the aforesaid appeal is that while the judgment was delivered on 23-10-1981, rajendra Prasad Singh, respondent No.1 in the second appeal, died on 22-10-1981, that is one day before. The appeal was however dismissed and the deceased-respondent was endowed with a successful decree in the appeal.

3. The petitioner relied on a decision of this Court in the case of Nathmal khandelia V/s. Smt. Janki Devi, 1983 BLJR 517, in which succinctly stated it has been held that a decree passed in favour of a deceased-respondent by the dismissal of the appeal will be a nullity in the absence of the heirs of the deceased-respondent whose valuable right by their not being brought on the record has been defeated.

4. The decision of choice, however, on this question is one of the Supreme court in the case of N. Jayaram Reddi V/s. The Revenue Divisional Officer and land Acquisition Officer, AIR 1979 SC 1393. Paragraphs 5 and 6 of that decision are relevant for the purpose of this application :

"5. But even if it were assumed that the Government appeal deserved to be dismissed as a whole because of its abatement against the deceased-respondent, there is no justification for Mr. Sens further argument that the High Courts decree, dated February 4, 1969, was a nullily merely because it was passed against a dead person, namely, Y. Prabhakar Reddi. It has to be appreciated that a decree against a dead parson is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it, and the legal representative cannot be condemned upheard. So if a respondent to an appeal dies and the appeal abates because of the failure his legal representative on tue record within the lirne limited by law, and the appellate Court loses sight of the development or ignores it, will still be permissible for the court hearing the appeal to bring his legal representative on the record on an application to that effect and to examine any application to that may be made for condonation of the delay. It is also permissible, and is in fact the common practice, to remand the case for disposal according to law to the Court in which it was pending at the time of the death of the deceased party. The law has, therefore, provided, and accepted, modes for reopening and hearing the appeal in such cases. "

"6. The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fastene on him a liability for which he did not have any hearing. So, while the law treats such a decree as a nullity qua the legal representative of the deceased-defendant or respondent, there is nothing to preveat him from deciding that he will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of the deceased respondent against who m a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandone that obvious technical objection and fight the appeal on the merits. He may do