The appeal abated upon the death of the sole appellant, and transposition provisions are not applicable when the original appellant has not challenged prior orders.

JUDGMENT :

1. This Application is filed under Order 23 Rule 1-A read with Order 1 Rule 10 of the Civil Procedure Code, 1908 (for short, hereinafter referred to as ‘the Code’).

2. Heard learned advocates for both the sides and learned Assistant Government Pleader for the respondent – State.

3. The applicant has filed the present First Appeal challenging the judgment and order dated 13.1.2020 passed by the learned District & Sessions Judge, Arvalli at Modasa in Civil Misc. Application No.39 of 2017. The said judgment and order was arising out of the order passed by the learned Charity Commissioner, Ahmedabad in Appeal No.40/2012 and also arising out of order passed by Assistant Charity Commissioner dated 14.5.2012 in Change Report No.105 of 2006. Pending the appeal, the appellant passed away on 9.7.2022. As the original appellant expired, the present applicant has filed the present application for transposing him as an appellant. It is submitted that the original appellant had challenged the Change Report which was accepted by the Assistant Charity Commissioner. The said order was assailed before learned Charity Commissioner. The learned Charity Commissioner rejected the appeal filed by the original appellant and thereafter, the appellant assailed the order of learned Charity Commissioner before the District & Sessions Judge, Arvalli at Modasa. It is submitted that the cause for the challenge still survives even after the death of appellant and the applicant is required to be transposed as appellant as the impugned judgment and order is also affecting the applicant. It is further submitted that the cause of action for filing the present application arose when the original appellant expired. By invoking provisions of order 23 Rule 1-A and provisions of Order 1 Rule 10 of the Code, request is made to permit the present applicant to be transposed as the appellant.

4. Per Contra, learned advocate Mr. Japee has objected and placed reliance upon the affidavit-in-reply dated 8th July, 2023. It is submitted that the present applicant is no more a Trustee of the Trust since the applicant had resigned as a Trustee by tendering a resignation dated 15.4.2006. Along with resignation, the applicant also filed an affidavit, inter-alia, stating that without any coercion, he is tendering the resignation. Along with applicant, four other trustees also resigned from Trust. Pursuant to the said resignation, Change Report was submitted before the Office of Charity Commissioner. The said Change Report was submitted to the competent authority along the Resolution passed by Trust. By the said Resolution appointment of new trustees alongwith aforesaid five outgoing trustees. Pursuant to the resignation the name of the present applicant and other trustees were deleted from the array of Trustees in the Public Trust Record.

4.1. It is further submitted that the order passed by the learned Charity Commissioner was never challenged by the applicant and the same has attained finality. The order of the learned Charity Commissioner was only challenged by the original appellant – Mr. Hasmukhbhai Chaganbhai Shah who has expired pending present proceedings. It is submitted that the provisions of Order 23 Rule 1-A as well as provisions of Order 1 Rule 10 of the Code are not applicable to the facts of the present case and has submitted that the applicant has no right to be either impleaded or transposed as appellant. It is further submitted that the Appeal has abated upon death of Sole Appellant.

5. Learned advocate for the respondent No.5 has supported the submission of learned advocate for the applicant and has also placed reliance upon the affidavit-in-reply filed on 31st July, 2023.

6. Learned AGP has submitted that the applicant in the present set of facts cannot be transposed as an appellant and the provisions of Order 23 Rule 1-A as well as provisions contained under Order 1 Rule 10 of the Code are not applicable and has prayed for dismissal of application.

7. Having