An appeal instituted in a representative capacity cannot abate if some of the Appellants die during its pendency, and their legal representatives are not brought on record.

Mudholkar, J—This is an appeal from a decision of Shri J.P. Jain, Additional District Judge, Kanker, dismissing an appeal on the ground that it had abated.

2. The appeal before the learned Additional District Judge was from a decree passed by the trial Court in favour of the Plaintiff-Respondents in their capacity as representatives of the Hindu community of Kanker and against the Appellants in their capacity as representatives of the Muslim community of Kanker, directing the latter to deliver possession of a certain site to the former. It would appear that some of the Defendant-Appellants died during the pendency of the appeal before the learned lower Appellate Court and their legal representatives were not brought on record within the time allowed by law. The learned Judge therefore held that the appeal had abated in toto and dismissed it.

3. The point which is taken before me is that the suit out of which the appeal before the learned Additional District Judge arose was brought against the Appellants in a representative capacity, that their appeal itself must be construed as one in a representative capacity and that therefore such an appeal cannot abate merely because some of the Appellants died during its pendency and their legal representatives were not brought on record. It is said on behalf of the Plaintiff-Respondents that the Appellants were not permitted to defend the suit in a representative capacity, that the procedure laid down in Order 1, Rule 8, Code of Civil Procedure was not followed by them and that therefore it cannot be said that they were sued in a representative capacity.

4. I have perused the order sheets and the relevant material on record and I am satisfied that the Appellants were permitted to defend the suit in a, representative capacity, that they followed the procedure which was required by law and that therefore the appeal must be deemed to have been instituted in a representative capacity. Such an appeal cannot obviously abate merely because some of the Appellants died during its pendency and their legal representatives are not brought on record. Indeed, when an appeal has been instituted in a representative capacity, the legad representatives of deceased Appellant have no right to be brought on record in the appeal at all. In the circumstances, I hold that the dismissal of the appeal was contrary to law. I therefore set it aside and remit the appeal to the lower Appellate Court for being heard and decided on merits.

5. Costs of this appeal will abide the event. Counsel's fee Rs. 20/-.