The main legal point established in the judgment is the application of Order 22, Rule 4, Civil P.C. to appeals and the binding effect of the appellate decree on the legal representatives of the deceased respondent.

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 defendant 9. With the others he contested the suit and it was dismissed with costs. The plaintiff appealed to the High Court, defendant 9 being impleaded as respondent 8. 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, 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 representatives of respondent 8, namely the present appellant 1, as respondents 10, 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 P.C., no legal representatives 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 representatives of-the plaintiff in possession. For the purpose of executing this decree petition (E.P. No. 105 of 1932) was then filed praying that the present appellants might be added as legal representatives of the deceased defendant 9, and that has been ordered by the lower Court. That order is contested on the grounds that Rule 4(4) of Order 22, Civil P.C., has no application to appeals, that the learned Judges who passed their order under this Rule has therefore no jurisdiction to exempt the appellant from the necessity to substitute the legal representatives of the deceased respondent and accordingly that the appellate judgment, having been pronounced against the dead respondent 8, is not binding on his legal representatives.

3. 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 adapted 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 proviso to Rule 14, Order 41, and enabling the appellate Court to dispense with the 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), Order 22. Mr. T.M. Krishnaswami Ayyar 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, having filed it, has failed to appear and contest at the hearing

4. 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. 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, Civil P.C., 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 Rule 3 if the respondent intends to appear and defend the appeal he shall, within the period specified, enter an appearance by f