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1901 DIGILAW 7 (CAL)

Bejoy Gopal Bose v. Umesh Chandra Bose

1901-01-09

body1901
JUDGMENT 1. We are of opinion that this second appeal must fail ; and fail by reason of defect of parties. The lower Appellate Court made a decree for arrears of rent jointly in favour of the Plaintiffs. One of the Plaintiffs died subsequent to the date of delivery of judgment in the lower Appellate Court, but before the decree was actually drawn up As, however, the decree under the provisions of sec. 205, C. C. P., is to bear the date on which judgment is pronounced, the circumstance does not affect the validity of the decree. Against that decree Defendant No. 4 preferred this appeal, but he did not make any application to the Court for the substitution of the legal representative of the deceased Plaintiff in his place. The appeal was preferred against the original Plaintiffs, and it was not until the case came on for hearing that the fact of the death of one of the Plaintiffs-Respondents, was brought to the Court's notice. The Respondents, however, some time before the hearing of the appeal served an affidavit upon the Appellant in which it was stated that one of the Plaintiffs died before this appeal was filed, and that the Appellant was aware of the fact of his death. That affidavit stands uncontradicted. Under these circumstances a preliminary objection is taken to the hearing of this appeal on the ground that it cannot proceed in the absence of the legal representative of the deceased Plaintiff, when the decree appealed against is a decree for a sum of money, made jointly in favour of all the Plaintiffs. The learned vakil for the Appellant contends that the utmost effect the omission on the Appellant's part to bring in the legal representatives of the deceased Plaintiff can have, is to allow the decree to remain in fact in so far as that Plaintiff is concerned ; but that it is competent to him to question the correctness of the decree as against the other Plaintiffs. 2. We are unable to accept this contention as correct. The decree was a joint decree in favour of all the Plaintiffs, and if the Defendant desired to question the correctness of that decree, he was bound to bring before the Court all the parties affected by that decree. He not having done so, the appeal cannot proceed, and must, therefore, be dismissed with costs.