The non-substitution of legal representatives does not lead to abatement if an application for substitution is timely granted.

1. The substantial question of law involved, formulated and to be answered in the second appeal preferred by defendant No.1 / his legal representatives is as under: -
'Whether on the facts and circumstances of the case, the Court below was justified in holding that the appeal did not abate though the legal representatives of the deceased respondent No.2 - Udayram, were not brought on record?'
[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

2. Original plaintiff - Soni Bai filed a suit for declaration of title, partition and possession stating inter alia that she is entitled for 1/2 share in the suit land and also entitled for possession to that extent over the suit land, which was opposed by defendants - Narayan and Udaylal by filing joint written statement. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 29.04.1980 partly decreed the suit for declaration only holding that the plaintiff is only entitled for 3.56 acres of the suit land. First appeal was preferred by plaintiff - Soni Bai, but during pendency of first appeal, she died and her legal representatives were brought on record. During pendency of first appeal, defendant No.2 - Udaylal also died. Respondent Nos.1 to 3 herein / legal representatives of the plaintiff moved an application under O.22, R.4 of the CPC for bringing legal representatives of defendant No.2 - Udaylal on record. The first appellate court by order dated 13.08.1998 allowed that application and directed legal representatives of defendant No.2 - Udaylal to be brought on record. In the original memo of appeal, though name of defendant No.2 - Udaylal stands deleted, but names of his legal representatives were not arrayed in the cause title in memo of appeal and thereafter, first appeal was heard and decided finally by the impugned judgment and decree and appeal was allowed in part, against which, this second appeal under S.100 of has been filed by the appellants / legal representatives of defendant No.1, in which substantial question of law has been formulated by this Court, which has been set - out in opening paragraph of this judgment.

3. Mr. Aditya Bhardwaj, learned counsel for the appellants / legal representatives of defendant No.1, would submit that due to non - substitution of legal representatives of defendant No.2 - Udaylal, the first appeal had already abated and therefore, the judgment and decree passed by the first appellate court deserves to be set aside only on that ground alone by granting this appeal.

4. Mr. P.K. C . Tiwari, learned Senior ounsel with Mr. Ashutosh Trivedi learned counsel for respondent Nos. 1 to 3 / legal representatives of plaintiff - Soni Bai, would submit that application for bringing legal representatives of defendant No.2 - Udaylal on record was filed and that was granted by the first appellate court and notices were directed to be issued for hearing of appeal after granting the application, but legal representatives were formally not arrayed in the cause title of memo of appeal, as such defect being only technical, the appeal had not abated and the first appellate court is absolutely justified in hearing & granting the appeal on merits. He would further submit that legal representatives were noticed on the application for substitution and they also entered their appearance through Mr. M.K. Vaidya, Advocate, as such, the judgment and decree passed by the first appellate court is in accordance with law and this appeal deserves to b