Sanjay K. Agrawal, J.

1. The substantial question of law involved, formulated and to be answered in the second appeal preferred by appellant/defendant No.1, is as under :-

"Whether the first appellate Court was justified in reversing the judgment and decree of the trial Court without issuing and giving notice to the appellant/defendants, which is contrary to the provisions contained in Order 41, Rule 14 , sub-rule (4) of Code of Civil Procedure, 1908?"

2. In order to answer the above-stated substantial question of law, following facts are required to be noticed.

(I) Plaintiff-Sukhana filed a suit against defendant No.1-Shivpatiya, defendant No.2-Fodor & defendant No.3-Kavla but defendant No.3 Kavla died during the pendency of the suit and his name was deleted from the array of cause title by order of trial Court dated 20.07.1998. The plaintiff's suit was dismissed by judgment and decree dated 16th February, 2000 passed in Civil Suit No.41-A/1999 by the Additional Civil Judge, Class-I, Ambikapur.

(II) Plaintiff-Sukhana preferred an appeal before the first appellate Court being Civil Appeal No. 18-A/2002 (Sukhana v. Shivpatiya & others), the said Court on 01.05.2002 held that since defendants Nos. 1 & 2 remained ex parte before the trial Court, issuance of notice is not necessary to them and fixed the date for hearing and in the meanwhile, defendant No. 1-Shivpatiya Bai has died on 04.12.2001. Ultimately, first appeal was allowed by the first appellate Court on 23.09.2003 and the plaintiff's suit was decreed.

3. Feeling dissatisfied with the judgment and decree of the first appellate Court, the legal representatives of defendant No.1-Shivpatiya Bai have filed second appeal under Section 100 of the Code of Civil Procedure (for short 'the CPC') in which, substantial question of law has been framed and incorporated in opening paragraph of the judgment.

4. Ms. Hamida Siddiqui, learned counsel appearing for the legal representatives of appellant/defendant No. 1, would submit that the first appellate Court has committed grave legal error in decreeing the suit of the plaintiff dispensing with the notice to the present appellant/defendant No.1 as defendant No. 1 has already filed written statement on 13.07.1990 and she has already filed registered address before the trial Court, therefore, the provision contained in Order 41, Rule 14 (4) of CPC would not be applicable. She would further submit that the appellant/defendant No.1-Shivpatiya Bai died during the pendency of the first appeal on 04.12.2001, yet the legal representatives of defendant No.1-Shivpatiya Bai were not brought on record and the appeal was allowed decreeing the suit of the plaintiff, therefore, the judgment and decree of the first appellate Court be set aside and the matter be remanded back to the first appellate Court for hearing and disposal of appeal on merits.

5. Mr. Shakti Raj Sinha, learned counsel appearing for the respondents would support the impugned judgment and decree of the first appellate Court.

6. I have heard learned counsel appearing for the parties and also considered the rival submissions made therein and gone through the records with utmost circumspection.

7. The question for consideration would be whether the first appellate Court was justified in dispensing with the notice of the appeal to the appellant/defendant No. 1 holding that she has not appeared before the trial Court.

8. At this stage, it would be appropriate to notice Order 41, Rule 14 (4) of CPC as under :-

"14. Publication and service of notice of day for hearing appeal-(1) x x x x x.

(2) x x x x x

(3) x x x x x

(4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal".

9. A careful peru