An appeal against a dead person is not maintainable and the proper legal remedy is to file an application for presentation of the appeal against the heirs of the dead person afresh. If the time for filing the appeal was in the meantime over, the appellant could present an application under Section 5 of the Limitation Act, explaining the delay in presenting the appeal afresh against the heirs.

( 1 ) AGAINST an appellate decree by the Additional District Judge, Fourth Court, at Alipore, District 24 Parganas, the petitioner, State of West Bengal, filed a Second Appeal to this Court, on November 17, 1958. The sole respondent in the appeal was one S. K. Maity alias Sachindra Kumar Maity, who was, as it now transpires, dead at the filing of the appeal. The appeal was admitted by this Court, on September 24, 1959, under Order XLI Rule 11 of the Code of Civil Procedure. A process server, who went to serve the notice of the appeal on the respondent, found out that the respondent had the sometime ago and returned the notice unserved with a report to the above effect Thereafter, on May 19, 1960, the case was placed before the Registrar of the Appellate Side of this Court, taking Lawazimah matters, for further action on the report of the process server. It is alleged, that the Advocate for the appellant State came to know, for the first on that date that the sole respondent was dead. Since the process server's report did not contain any information either about the date of the death or about the heirs or legal representatives of the respondent, the learned Advocate had to forward the information to the Superintendent and Legal Remembrancer, West Bengal, who looks after cases pending in the High Court, in which the State Government is a Party, for necessary instructions. It is further alleged, that the Legal Remembrancer, in his turn, forwarded the information, on May 24, 1960, to an Additional District Magistrate of 24 Paraganas for ascertaining the date of the death of the respondent and the names of his heirs or legal representatives. The Additional District Magistrate deputed the District Kanungo to enquire into matter. The District Kanungo, thereafter, contacted the opposite party No. 2, one of the heirs of the deceased respondent, and ascertained as follows:-- (a) that the respondent died intestate on October 26, 1958. (b) that the respondent left him surviving as his heirs and legal representatives, (i) his widow. Sm. Monisha Malty, (ii) his sons, 1. Shyamal Maity. 2. Sajal Maity. 3. Kajal Malty. 4. Ujjal Malty, minor. 5. Utpal Maity, minor. (iii) his daughters, 1. Sulagna Maity, 2. Sudakshina Maity, 3. Swapana Maity. (c) that the minor sons of the deceased were living under the guardianship of their mother, who was a fit and proper person to he appointed their guardian in the Second Appeal. The District Kanungo incorporated the above information in his report, dated June 8, 1960, and submitted the same before the Additional District. Magistrate. When the above report reached the learned Advocate for the State, he filed an application, on June 15, 1960, praying, (a) that the abatement of the appeal he set aside (b) that the heirs of the deceased respondent be substituted in his place, or (c) that they be added as parties respondents and be brought on the record. On the above application, there was a Rule Nisi issued, on June 27, 1960, on the following terms:--"let a Rule issue calling upon the heirs and legal representatives of the deceased sole respondent, as mentioned in the petition, to show cause why abatement of this appeal consequent upon the death of the deceased sole respondent should not be set aside and the aforesaid heirs substituted in his place and stead or such other or further order made as to this Court may seem fit and proper. "the respondents to the Rule opposed the Rule. They filed an affidavit-in-opposition, in which it was, inter alia, denied that the State Government came to know the death of the sole respondent in the appeal only on May 19, 1960, as alleged. It was further stated in paragraph 5 of the affidavit as follows:"that after the death of S. K. Maity. the present opposite parties gave notice to the petitioner represented by the Collector 24 Parganas, through Court, on 11-7-59. That the said notice was served by the Court on the Collector on 22-7-59. That, thereafter, the prese