An appeal filed in the name of a dead person is a nullity and cannot be resuscitated under Order 1, Rule 10, or Sections 151 and 153, C. P. C.

G.D.Khosla and Gurdev Singh JJ.

1. In this appeal under Clause 10 of the Letters Patent against the order passed by a learned single Judge of this Court on 19-3-1958 in Execution First Appeal No. 174 of 1956, the sole question for decision is whether an appeal filed in the name of a person, who was dead on the date of the institution, could be continued by permitting his legal representatives to be substituted in his place as appellants. The facts giving rise to this appeal are as follows:

2. Ram Lal, husband of Shrimati Amar Kaur (the appellant before us) obtained a decree for Rs. 18,000/- with costs against the estate of Udham Kaur in the hands of respondents Sadhu Singh and others. In execution thereof certain properties situated in village Ganeshpur were attached. Objections to the attachment having been preferred by Dhanna, one of the judgment-debtors, the executing Court released one half of the properties from attachment; vide its order dated 25th June, 1956.

3. On 27-10-1956, the decree-holder Ram Lal died in Africa. In ignorance of his death on 5th November 1956 an appeal against the order of the executing Court dated 25-6-1956 was presented to this Court by Shri Harbans Singh Gujral, advocate, who purported to act as counsel for the decree-holder, Ram Lal on the strength of the power-of-attorney given to him by the decree-holders wife Shrimati Amar Kaur. When the appeal came up for hearing on 19-3-1958 before a learned single Judge of this Court, the respondents objected that the appeal could not be entertained having been filed by a dead person. This objection prevailed and Bishan Narain, J., dismissed the appeal without making any order as to costs.

4. Shri Harbans Singh Gujral, the learned counsel for the appellants, in assailing the order of the learned single Judge has not disputed the fact that the execution appeal was filed in the name of a dead person as Ram Lal, appellant, had died a few days earlier on 27-10-1956. He has, however, urged that since an appellate Court has all the powers of the original Court, as laid down in Section 107, C. P. C., the learned Judge acting under Order 1, Rule 10, C. P. C., should have allowed the names of Shrimati Amar Kaur and Sohan Singh to be substituted for the deceased appellant Ram Lal, being his legal representatives, as it was on account of sheer ignorance of the death of Ram Lal that the appeal was filed in his name and not that of his legal representatives. In support of this contention be relies upon Alabhai Vaisurbhai V/s. Rhura Bhaya, AIR 1937 Bom 401, Mehar Singh V/s. Labh Singh, AIR 1932 Lab 305, and Karimullah Khan V/s. Bhanu Pratap Singh, AIR 1938 Nag 458.

I, however, find that even the decisions of the Bombay, Lahore and Nagpur Courts are conflicting and an appeal filed in the name of a dead person being a nullity cannot be resuscitated either under Order 1, Rule 10, or Ss. 151 and 153. C. P. C. In AIR 1932 Lah 305, Johnstone, J., relying upon A. Gopala Krishnayya V/s. Lakshmana Rao, ILR 49 Mad 18: (AIR 1925 Mad 1210) (FB), held that in an appeal filed against a dead person bis legal representatives could be substituted and the delay in such substitution must be excused in exercise of genera] powers of amendment that vested in a civil court under Section153, C. P. C. The decision of a Division Bench of the Lahore High Court reported as Roop Chand V/s. Sardar Khan, AIR 1928 Lah 359, was distinguished on the ground that it related to the question of abatement. An earlier decision of that Court reported as Mt. Boondu v. Moti Chand, AIR 1923 Lah 652(1), was not cited before Johnstone, J.

5. The decision in AIR 1937 Bom 401, is again based upon ILR 49 Mad 18: (AIR 1925 Mad 1210) (FB). In that case their Lordships allowed the legal representatives of one o£ the respondents, who was dead, to be substituted acting under Ss. 151 and 153, C. P. C., "in order to prevent injustice being done".

6. Both the Lahore and the Bombay cases referred to above are clearly