An application for leave to file a fresh review application, impleading the legal representatives of the deceased appellant as respondents, is maintainable, but the delay in filing the application has to be explained.

Ashis Kumar Chakraborty, J.

Re : CAN 7029 of 2014 & CAN 7874 of 2014.

These applications have been filed by the surviving appellants in the second appeal in SA 91 of 2011 which was dismissed on merit by a learned Single Judge of this Court on February 11, 2014. The second appeal arose out of a judgment and decree passed by a learned Judge of the City Civil Court at Calcutta affirming the judgement and decree for eviction passed by the learned Judge of the Presidency Small Causes Court, 2nd Bench, Calcutta. The hearing of the appeal was concluded before the learned Single Judge on February 6, 2014 and the judgment was delivered on February 11, 2014. In the meantime, on February 7, 2014 the appellant no. 2 in the second appeal died intestate leaving behind his legal representatives.

2. On March 24, 2014 a memorandum of review was filed for review of the judgment of the learned Single Judge of this Court dated February 11, 2014 with the names of all the appellants in the second appeal including the appellant no. 2 who was already dead. An Application, CAN 5780 of 2014 was also filed for stay of operation of the decree passed in the second appeal. On July 7, 2014 when the said stay application was taken up by a learned Single Judge of this Court, an objection was raised on behalf of the respondents with regard to the maintainability of the review application on the ground that the applicant no. 2 was a dead person. Thereafter, on July 15, 2014 the surviving appellants filed the application being CAN 7029 of 2014 to obtain leave to present the fresh memorandum of review by impleading the legal representatives of the original appellant no. 2 as the respondents, on the ground that they refused to join the surviving appellants in the review application. The application being CAN 7874 of 2014 is the application under section 5 of the Limitation Act for condoning the delay in filing the subsequent review application CAN 7029 of 2014.

3. Mr. Bhattacharya, learned counsel appearing for the applicants in CAN 7029 of 2014 submitted that it is the settled law that if a person impleaded as a respondent in an appeal is already dead as on the date of presentation of the memorandum of appeal, there is no question of addition or substitution of the legal representatives of the deceased respondent in the appeal. He submitted that in such a case the proper course will be to prefer the appeal afresh against the heirs and legal representatives of the deceased respondent. In support of the said contention, Mr. Bhattacharya cited the decision of the Division Bench of this Court in the case of State of West Bengal v. Manisha Maity and others, reported in 68 CWN 189. Relying on the said decision he further submitted that the remedy of an appellant, who has filed an appeal against a dead person, is to file an application for presentation of the appeal against the heir or legal representatives of the dead person afresh and if the time for filing the appeal had expired in the meantime, he is to present an application under Section 5 of the Limitation Act explaining the delay in presenting the appeal afresh. He further submitted that the above decision of the Division Bench of this Court has been relied in the subsequent decisions of the Division Bench of this Court in the cases of Sachindra Chandra Chakravarti v. Jnanendra Narayan Singh Roy reported in AIR 1963 Calcutta 417 and Asgar Ali v. Jamil Akhtar Siddique & Ors. reported in 2009(1) CHN Cal 333.

4. Based on the aforementioned authorities cited by him Mr. Bhattacharya submitted that even in a case where an appeal is filed with the name of a dead person in the memorandum of appeal, the same principle will follow and an application has to be filed by the surviving appellants for presentation of the memorandum of appeal, with the name of the heirs and the legal representatives of the deceased appellant, afresh and if in the meantime the time for filing the appeal expires, the surviving appellants are