The court clarified the applicability of Rule 4(4) of Order 22, Civil Procedure Code to appeals and emphasized that the appellate decree has the same force and effect as if it had been pronounced before the respondent's death.

Curgenven, J.

1. The appeal arises out of execution proceedings taken in a suit filed to recover some property from a number of defendants. We are here concerned with ninth defendant. With the others he contested the suit and it was dismissed with costs. The plantiff appealed to the High Court, ninth defendant being impleaded as eighth respondent. On 2nd May, 1926, he was served with notice of the appeal but he failed to comply with the terms of the notice by entering an appearance within the 30 days allowed. The appeal was disposed of in December, 1930, and sometime in June, 1927, while it was pending, the eighth respondent died. After his death three petitions were filed by the appellant in the appeal, (1) to excuse the delay which had occurred, (2) to set aside the abatement of the appeal, and bring on the legal representative of the eighth respondent, namely the present first appellant, as tenth respondent and (3) to appoint his mother as his guardian, he being a minor. In disposing of these petitions the learned Judges, Phillips and Devadoss, JJ., passed an order in these terms:

Under Order 22, Rule 4, Civil Procedure Code, no legal representative need be impleaded. The petitions are dismissed.

2. The appeal was heard in due course and the decree of the lower Court reversed, the appellate decree directing the respondents to put the legal representative of the plaintiff in possession. For the purpose of executing this decree a petition (E.P. No. 105 of 1932) was then filed praying that the present appellants might be added as legal representatives of the deceased ninth defendant, and that has been ordered by the lower Court.

3. That order is contested on the grounds that Rule 4(4) of Order 22, Civil Procedure Code, has no application to appeals, that the learned Judges who passed their order under this rule had therefore no jurisdiction to exempt the appellant from the necessity to substitute the legal representatives of the deceased respondent find accordingly that the appellate judgment, having been pronounced against the dead eighth respondent, is not binding on his legal representatives.

4. Rule 11 of Order 22, provides for the application of the order to appeals, so far as may be. Unless therefore there is something in the terms of Rule 4(4) which precludes its application to appeals there can be no doubt that, equally with a number of other provisions of the Code which are in language adopted to suits, the intention is to apply a similar rule to both forms of proceeding. It is worth notice that a provision of somewhat analogous character, embodied in the provisos to Rule 14, of Order 41, and enabling the appellate Court to dispense with service of notice on respondents against whom the suit has proceeded ex parte, was introduced into the Code at the same time as Rule 4(4) of Order 22. Mr. T.M. Krishnaswami Aiyar argued that it is not possible to apply this latter rule to appellate procedure. He contends that no such omission or default can be made by a respondent in an appeal as will correspond to that of a defendant "who has been declared ex parte or who has failed to file his written statement or who, Q~ having filed it, has failed to appear and contest at the hearing." Such a respondent cannot be declared ex parte. He has nothing to do and cannot therefore commit default in doing anything, until the actual hearing of the appeal. Even if he has failed to enter an appearance, yet if he appears in person or by pleader on the day of the hearing he must be heard.

5. This does not we think, give quite a correct view of the position of a respondent, at least in relation to proceedings before this Court. The procedure is specified in Order 41(a), which modifies Order 41 of the Civil Procedure Code. Rule 2(2) of this order prescribes a period of 30 days from service of notice for entry of appearance by the respondent and filing by him of a memorandum of cross-objections if any. Under R. if the respondent intends to appea