JUDGMENT : SAMVATSAR, J. 1. One Kedarnarayan son of Jainarayan filed a suit against the present appellants for recovering a sum of Rs. 10,000 as damages, in the Court of the Civil Judge 1st class at Indore. The defendant resisted the claim but notwithstanding the opposition the trial Court passed a decree in plaintiff's favour for a sum of Rs. 7,500 and costs. Aggrieved by this decree the appellants have preferred this appeal. 2. The decree under appeal was passed by the learned Civil Judge on 3-8-1953 and the present appeal was filed by the appellant on 20-11-1953. It transpired during the proceedings for effecting service of the summons on the respondent Kedarnarayan that he was dead. On 20-4-1954, the appellants applied to this Court for substitution of the names of the legal representatives Narmadprasad and Tarachand in place of the deceased respondent. This prayer was opposed by the proposed legal representatives contending that on the date the appeal was filed Kedarnarayan was dead and the appeal being thus a nullity the names of the legal representatives could not be brought on record in this appeal. 3. It is admitted on behalf of both the parties that Kedarnarayan had died on 7-7-1953 and that, therefore, the appeal when it was filed in this Court was against a dead respondent. 4. Order 22 R. 4, C.P.C. under which apparently the application to bring the names of the legal representatives on record has been made by the appellant has no application to this case. The respondent against whom the appeal was preferred had died before it was filed. Order 22 applies only to cases of creation, transfer and devolution of interest during the pendency of suit or appeal. There can be no substitution of the legal representatives under this Order if the party concerned had died before the suit or appeal was instituted. 5. An appeal filed against a sole respondent who is dead is in my opinion a nullity and no order could be made in it for continuing it by impleading the legal representatives. Order 22, C.P.C. has as stated above no application to this case nor can respondents be added in such a case by applying the provision of O. 1 R. 10. Order 22, C.P.C. has as stated above no application to this case nor can respondents be added in such a case by applying the provision of O. 1 R. 10. C.P.C. The application of O. 1 R. 10 C.P.C. to such a case has been considered in 'Bai Paul Vankar v. Madhabhai Galabhai', AIR 1953 Bom 356 (A). 6. That was a case where an appeal had been filed against a sole respondent who was dead and when this fact was discovered, an application was made to implead the legal representatives of the deceased under the provisions of O. 1 R. 10, C.P.C. The prayer was refused by the appellate Court, whereupon the appellant approached the High Court. Chagla, C.J. held that an effective order under O. 1 R. 10, C.P.C. can only be made provided there is a suit or an appeal before the Court, but if the suit, or appeal is a nullity as having been filed in the name of a dead person then any order made in that suit or appeal is equally a nullity. 7. The same view was taken by Mulla, J. in Rampratap v. Gauri Shanker', AIR 1924 Bom 109 (B) and in- 'Sudhir Kumar v. Amritlal', ILR (1946) 2 Cal 611 (C) where the suit was found to be instituted against the defendant who was dead. 8. In 'Parmeswara Iyer Krishna Iyer v. Krishna Iyer', AIR 1953 Trav-C. 473 (D) a suit was filed against several defendants but relief was only claimed against defendants 1 and 2. It transpired later on that the two defendants had died long before the suit was instituted. The plaintiff applied to implead the legal representatives but that prayer was refused and the suit itself was dismissed by the trial Court. In appeal the High Court confirmed the decree holding that if the names of the deceased defendants are removed from the party array, the plaintiff will have no action to continue. The suit was, therefore, not properly instituted and the Court had no jurisdiction to proceed further with it. 9. In appeal the High Court confirmed the decree holding that if the names of the deceased defendants are removed from the party array, the plaintiff will have no action to continue. The suit was, therefore, not properly instituted and the Court had no jurisdiction to proceed further with it. 9. It is well settled that an appeal filed against a dead person is a nullity and Court has no jurisdiction to allow the memorandum to be amended by substituting the names of the legal representatives of the deceased even though the appellants were ignorant of the death of the respondent when they filed the appeal and had acted in good faith in doing so. 10. A contrary view is taken in- 'Gopal Krishnayya v. Lakshman Rao', AIR 1925 Mad 1210 (FB) (E), where it was held that the Court has jurisdiction under S. 153, C.P.C. to permit the title to be amended when an appeal was filed against the respondent who was already dead. This Madras case was considered by Chagla, C.J. in AIR 1953 Bom 356 (A), and was dissented from. 11. In my opinion the correct statement o£ law is to be found in the judgment of Mulla, J. in AIR 1924 Bom 109 (B) and in AIR 1953 Bom 356 (A). 12. The substitution of the heirs of the deceased defendant in a suit or respondent in appeal is permissible where the defendant or respondent was alive at the date of the institution. A suit or appeal filed against a sole defendant or respondent who was dead on the date of the institution is a nullity and the Court has no jurisdiction to substitute the heirs of the deceased under O. 22 R. 4, C.P.C. or add their names in exercise of the powers conferred upon it by O. 1 R. 10, C.P.C. 13. Under the circumstances I hold that the present appeal which was filed against a sole respondent who is dead is a nullity and must be dismissed with costs. Appeal dismissed.