The failure to implead the legal representatives of deceased parties and the lack of merit in the appeal led to the dismissal of the appeal.

Heard learned counsel for the parties.

2. The appellants are aggrieved against the impugned order dated 26-4-2005 by which the first appellate Court - Court of the Additional District Judge, Ratangarh (Chum) dismissed the appeal of the appellants as abated due to the death of defendant/ respondent Dal Chand as in regular first appeal. the plaintiff/ appellant did not choose to file any application for bringing on record the legal representatives of Dal Chand.

3. Brief facts of the case are that one of the defendants Khetu Lal took loan from another defendant Revat Mal. Said Revat Mal filed a suit for recovery of the money which was decreed by the trial Court as back as on 20-10-1965. Said Revat Mal submitted execution petition No. 46/67 for recovery of the said decretal amount of Rs. 609/- only and in the said execution, the house of judgment debtor Khetu Mal was auctioned for a consideration of Rs. 9.775/-. The reserve price was Rs. 5.000/- only. After the said auction, the present appellants - sons of judgment debtor Khetu Mal filed a suit for declaration that the suit property was ancestral property of Khetu Mal and. Therefore, he could not have mortgaged it to another creditor Dal Chand. They also sought relief for cancellation of the mortgage deed executed in favour of Dal Chand. It may be relevant to mention here that Dal Chand also obtained the decree on 26-1-1971 for the house in question and the final decree was I passed in favour of Dal Chand. In the suit both the creditors Revatmal and Dal Chand were impleaded as parties including ancestor of the appellants - Khetu Lal. The execution of sale was also challenged in the suit. The trial Court dismissed the plaintiffs suit vide judgment dated 2-12-1989 on merit. The plaintiffs/appellants preferred regular first appeal against the dismissal of the suit. During the pendency of the first appeal, one of the defendants Dal Chand died on 2-12-1994. On 26-2-1999, the respondent No. 3 submitted an application seeking dismissal of the appeal as abated. Yet no application was submitted by the appellants for bringing on record the legal representatives of defendant Dal Chand. The appellate Court after considering that Dal Chand was necessary party in the suit and appeal and he is mortgagee of the house in dispute and relief has been sought against said Dal Chand and that relief was about declaration of mortgage deed executed by defendant Khetu Lal dated 27-8-1962 as null and void, held that in absence of Dal Chand or his legal representatives, the mortgage deed dated 27-8-1962 cannot be declared illegal and null and void and consequently, the appeal was dismissed. Hence, this misc., appeal has been preferred by the appellants.

4. During the pendency of the present appeal. Khetu Lal. father of the appellants, also died on 28-1-2006. Respondent No.3 Dalpat Rai, auction purchaser of the house, submitted an application before this Court praying that this appeal may also be dismissed on count of death of respondent No.4 Khetu Lal and for not impleading his legal representatives in appeal. The appellants submitted that the appellants No. 1,2 and 3 are the sons of deceased Khetu Lal, therefore, the appeal cannot abate.

5. It will be worthwhile to mention here that the present appeal has been preferred without impleading the legal representatives of Dal Chand as well as of Revat Mal who both died before the appeal was preferred, For respondent Khetu Lal, there are serious allegations of his own sons - appellants, who also died. In view of the above facts, the appeal is not against Pal Chand and Revat Mal because the appeal against the dead person is no appeal. Therefore, the appeal was only against respondent No.3 Dalpat Rai who purchased the property of Khetu Lal in execution of money decree against Khetu Lal and was against Khetu Lal.

6. It is true that if one of the legal representatives, who can represent the estate of the deceased, is already on record, may be in different capacity