JUDGMENT M.R. Verma, J.(Oral) :- This is a Regular Second Appeal under Section 100 of the Code of Civil Procedure (hereafter referred to as the Code) preferred by the appellant-defendant (hereafter referred to as the appellant) against the judgment and decree dated 14.3.2001 passed by the learned Additional District Judge, Solan, whereby he has dismissed the appeal preferred by the appellant against the judgment and decree dated 29.8.2000 passed by the learned Sub Judge 1st Class, Nalagarh, in Civil Suit No.60/1 of 1998.

2. During the pendency of the appeal, the appellant moved an application under Order 22 Rules 4 and 9 read with Section 151 of the Code for bringing on record the legal representatives of respondent No6 along with an application under Section 5 of the Limitation Act for condonation of delay in filing the said application. The respondents were afforded an opportunity to file reply to the application which they did not. What emerges from the uncontroversial averments in the aforesaid applications, duly supported by affidavits and Annexure A-1, is that Babu Ram, respondent No.6, died on 1.1.2001, when the first appeal preferred by the appellant against the judgment and decree of the trial Court was pending disposal in the Court of the learned Additional District Judge, Solan. Even otherwise, it is not disputed that Babu Ram died during the pendency of the first appeal in the Court of the learned Additional District Judge, Solan. Even otherwise, it is not disputed that Babu Ram had died during the pendency of the first appeal in the Court of the learned Additional District Judge, Solan. It is alleged that at the relevant time, the factum of the death of the deceased was not known to the appellant. It is admitted position that the legal representatives of the said deceased were not brought on record and the impurnged judgment and decree had been passed by the learned Additional District Judge in the aforesaid circumstances.

3. The learned counsel for the parties were heard in view of the aforesaid facts on the question regarding further course of action in the matter.

4. Since Babu Ram, respondent before the lower appellate Court, had died during the pendency of the first appeal and no steps were taken to bring on record his lega representatives, therefore, the questions (i) whether the appeal before the lower Appellate Court had abated and if so, the extent and effect of the abatement, (ii) whether there is sufficient cause for setting aside the abatement or not and (iii) whether the legal representatives of the deceased are to be allowed to be brought on record or not, necessarily arise for determination.

5. As and when such questions, as aforesaid, arise in relation to a suit or appal, at the first instance, these are to be decided by the Court in which the suit or appeal was pending at the time of the death of the party and the abatement took place. (See: Barfi Devi & Ors. v. State of H.P. & Ors. 2001 (2) SLC 162.

6. In view of the above position in law, the only alternative is to set aside the impugned judgment and decree and to remand the case to the lower appellate court.

7. As a result, the impugned judgment and decree are set aside and civil Appeal No.61-NL/13 of 2000 is remanded to the learned Additional District Judge, Solan, Camp at Nalagarh, who shall, after restoring the appeal to its original number and date, permit the appellant- defendat to take such steps as are permissible to him under the law in the given circumstances of the case and to afford opportunity to the respondents-plaintiffs to take objections thereto and thereafter take decision in accordance with law.

8. The appeal is disposed of in terms of the above orders, leaving the parties to bear their own costs of the appeal.

9. Parties are directed to appeal before the lower Appellate court on 11.1.2002.

10. In view of the above judgment, the application has become in fructuous and is dismissed as such. The ad-interim order dated 26.6.2001 passed in

Click Here to Read the rest of this document