The death of a defendant during the pendency of an appeal does not render the decree passed against him a nullity if his legal representatives are not brought on record, as the duty to do so lies on them and the suit does not abate in such a case.

1. This revision petition has been filed by Pawan Kumar, Pardeep Kumar minor sons and Miss Manju minor daughter of Om Parkash against the order by the Subordinate Judge 1st Class, Sirsa dated May 26, 1979.

2. Shrimati Sukhi Devi filed a suit for ejectment against M/s. Ladu Ram Gheru Lal, Gheru Lal, Harish Chand, Om Parkash and Kishan Lal from the shop in dispute situated in village Elnabad Tehsil Sirsa. Harish Chander, Om Parkash and Kishan Lal defendants were the sons of Gheru Lal defendant. Harish Chander and Om Parkash were proceeded ex parte in the trial Court. The suit of the plaintiff was dismissed on Apr. 8, 1975. She filed an appeal before the Additional District Judge, Hissar against that decree During the pendency of the appeal Shrimati Sukhi Devi died. Shrimati Champa Devi, and Shrimati Purni Devi who were the daughters of the deceased were brought on the record as her legal representatives. The Additional District Judge accepted the appeal and decreed the suit of the plaintiff-appellants. M/s. Ladu Ram Gheru Lal, Gheru Lal and Kishan Lal defendants came up in Second Appeal to this Court which was dismissed in limine on May, (26), 1979.

3. The decree-holders after the decision of the appeal started execution of the decree against the judgement debtors. The present petitioners namely Pawan Kumar, Pardeep Kumar and Miss Manjoo filed objections against the execution of the decree on the ground that their father Om Parkash had died during the pendency of the appeal and the petitioners had not been brought on the record Consequently, it was alleged that the decree was a nullity and could not be executed. It was further stated that they were minors and were in possession of the shop. The application was contested by the decree holders, who pleaded that the decree was not a nullity as it was the duty of the legal representatives of the deceased to have filed the application for impleading them as parties in place of their father. They further pleaded that a Second Appeal was filed in the High Court by some of the judgement debtors which was dismissed in limine and consequently no prejudice can be said to have been caused to them.

4. The learned Executing Court came to the conclusion that if the legal representatives of the deceased were not impleaded as parties in the appeal that would not make the decree a nullity. Consequently, it rejected the objections of the applicants. They have come up in revision against that order.

5. It is contended by Mr. Premi, learned counsel for the petitioners that Om Parkash judgement debtor had died during the pendency of the appeal and his legal representatives had not been brought on the record. It is further contended that the appellant-decree holders did not obtain order of the appellate Court to exempt them from the necessity of substituting the legal representatives of the deceased under sub-rule (4) of R.4 of O.22 Civil P.C. According to him, the appeal therefore stood abated and the decree was a nullity.

6. I have heard the learned counsel for the parties at a considerable length. I, however, regret my inability to accept the contention of Mr. Premi. In order to decide the question it will be proper to make a reference to the relevant provisions of Order 22 of the Code of Civil Procedure. R.2 of O.22 deals with procedure where one of several plaintiffs or defendants dies and right to sue survives, Rule 3 with the procedure in case of death of one of the several plaintiffs or of sole plaintiff and Rule 4 with the procedure in case of death of one of several defendants or of sole defendant.

This High Court added 2 Rules numbered as 2A and 2B which are as follows :-

"2A. Every Advocate appearing in a case who becomes aware of the death of a party to the litigation (whether he appeared for him or not) must give intimation about the death of that party to the Court and to the person who is dominus litis.

2B. The duty to bring on record the legal representatives of the deceased-d