Ramesam, J.

1. If an appeal is presented/against a person who was dead at the date of presentation, the Court may, under Section 153, Civil Procedure Code, permit the cause-title to be amended or may return the appeal memorandum for amendment and representation. We think that the Bench which decided Govindu Kaviraj Purohito v. Gauranga Saw (1923) 45 MLJ 231. went too far in dismissing the second appeal as incompetent, and in declining to exercise its power of correcting, errors under Section 153, Civil Procedure Code. If the appeal memorandum is not allowed to be amended the party may apply for a refund of the spoilt stamp and may present a fresh appeal. In any case, the Court will, if the appeal is out of time against the legal representative, have to excuse the delay in presentation before it can proceed to hear the appeal.

2. Although the appeal may be incompetent owing to the wrong person being named as respondent, the Court which deals with it is acting in a proceeding in a suit and as such has full power under Section 153 to direct an amendment of the appeal memorandum.

3. As observed by Ramesam and Wallace, JJ. in C.M.P. No. 2807 of 1923 the question resolves itself int