JUDGMENT M.C. Desai, C.J. - This revision, which came up before our brother Mithan Lal, has been referred by him to a larger Bench because it involves two questions of law on which an authoritative pronouncement of this Court was considered necessary, one being whether a suit instituted against a dead person can be treated as a suit instituted against a wrong person within the meaning of Or. 1, R. 10, C.P.C. and can proceed after legal representatives of the dead person are brought on the record before the period of limitation for the suit expires, and the other being whether this Court should in revision interfere with an order passed by the courts below allowing such a suit to proceed after bringing on record the legal representatives. 2. The opposite-party filed a suit in a court of small causes for money against Haji Rozi Mian father of the applicants, on 30-1-1959. Haji Rozi Mian had died on 9-9-1958 but the fact of his death was not known to the opposite-party. He was a resident of Glozipur, whereas the opposite-party is a resident of Varanasi. The opposite-party applied for attachment before judgment and on 21-4-1959 property of the applicants was attached and they objected. Then, it appears, the opposite-party became aware of the death of Haji Rozi Mian and on 18-5-1959 applied to the learned Judge of the small cause court for amendment of the plaint by expunction of his name and substitution of the names of the applicants as his legal re-preventatives. The limitation for the suit had not expired before that date and the learned Judge allowed the amendment and substituted the applicants as defendants in place of Haji Rozi Mian. The order of the learned Judge was upheld by the District Judge, and the applicants have come up in revision. 3. The contentions of Sri Iqbal Ahmad, counsel for the applicants, are that the suit having been filed against dead person was a nullity and could not be deemed to be a suit instituted against a wrong person within the meaning of Or. 1, R. 10, C.P.C., that since the suit was a nullity, the plaint could not be amended under See. 1, R. 10, C.P.C., that since the suit was a nullity, the plaint could not be amended under See. 153 also and that it was immaterial that the opposite-party acted bona fide in filing the suit against Haji Rozi Mian, of whose death he was not aware and that on the date on which he applied for amendment the limitation for the suit had not expired. He has relied upon the following cases: (1) Veerappa Chetty v. Tindal Ponnen, I.L.R. 31 Mad. 86 case decided under the Old Civil Procedure Code (Act XIV of 1882). (2) In re A. L. A. R. R. M. Arunachalam Cheittar, 30 I.C. 679 and Rasa Goundan v. Pichamuthu Pillai, 42 I.C. 539 which simply follow it and do not give necessary facts in detail (the proceeding in the latter case was not even a suit and there arose no question of amendment). (3) Makram Ali v. Abdul Hamid, AIR 1927 Calcutta 880 in which one of the two plaintiffs was dead at the time of the institution of the suit and amendment by bringing on the record his legal representatives was allowed because it was not a - case brought by a sole plaintiff who had been dead. (4) Municipal Council v. Thazhel Puthan Purayil Kunhi-Pathumma, AIR 1933 Madras 454, in which Pandalai, J. observed at page 455: "Where a plaint is filed against a person who is in fact dead at the time of presentation. no application by way of amendment or bringing on record legal representatives can be validly made, because the whole proceeding is void and has no effect whatever." the application for amendment having been made after the expiry of the period of limitation, (5) Mst. Boondu v. Moti Chand, AIR 1923 Lahore 652 in which a suit on behalf of a minor, who had already been dead, was instituted by his mother and next friend and her application was refused by the court, following the case of Veerappa Chetty, I.L.R. 31 Mad. Boondu v. Moti Chand, AIR 1923 Lahore 652 in which a suit on behalf of a minor, who had already been dead, was instituted by his mother and next friend and her application was refused by the court, following the case of Veerappa Chetty, I.L.R. 31 Mad. 86 case decided under the Old Civil Procedure Code (Act XIV of 1882) on the grounds that she had failed to satisfy it of her ignore of the death of her son and of her bona fides in suing on his behalf, (7) Municipal Corporation v. Baradio Jumoo Mughal, A.I.R. 1946 Sind 20 in which Thandani, J., following the case of Municipal Council v. Thazhel Puthan Purayil Kunhi-Pathumma, AIR 1933 Madras 454 held that a court has no jurisdiction to grant an application under Or. 1, R. 10 or Or. 22, R. 4 or 9 or to do any other act authorised by the Code in a suit brought against a dead person and that the bona fides of the plaintiff is immaterial, and (8) Parameswara Iyer Krishna Iyer v. Krishna Iyer Venkitachalam Iyer, A.I.R. 1953 Tra. Co. 43 in which amendment of the plaint of a suit brought against a dead person and others by substituting the dead person's legal representatives was refused by the court. 4. Sri A. P. Pandey, counsel lot the opposite-party, relied upon the following :- (1) Chatur Prasad v. Batjnath Prasad, A.I.R. 1930 Allahabad 131 in which an appeal filed against a person, who had died four days earlier and whose death was not known to the appellant, was allowed to be amended even though the period of limitation for filing an appeal had expired, because the appellant was found to have acted bona fide in filing the appeal. against the dead person, (2) Gordhandas v. Rijhibai, A.I.R. 1937 Sind 47 in which it was held that a suit brought against a sole defendant, who had died previously, could proceed after substituting his legal representatives in his place under Or. 1, R. 10, (3) Karimullah Khan v. Bhanu Pratap Singh, AIR 1938 Nagpur 458 in which it was observed that the distinction between a dead person and a wrong person was without difference, that it made no difference whether the wrong person was dead or alive and that Or. 1, R. 10, (3) Karimullah Khan v. Bhanu Pratap Singh, AIR 1938 Nagpur 458 in which it was observed that the distinction between a dead person and a wrong person was without difference, that it made no difference whether the wrong person was dead or alive and that Or. 1, R. 10, applies also when a suit is brought on behalf of a person who had died previously, (4) Kannangara Ismail v. Palayat Kappadakkal Pavu Amma, AIR 1955 Madras 644 in which a suit to challenge a decree passed in an earlier suit instituted against a dead person but continued against his legal representatives after they were brought on record, under Or. 1, R. 10, was dismissed on the ground that it could not be said to be void ab initio, and Govinda Menon, J. observed that if a plaintiff can bring a fresh suit, there is no justification for refusing his application for amendment of the plaint by substituting for the dead defendant his legal representatives and that the case in which an application for amendment is brought after the expiry of the period of limitation is to be distinguished, and (5) C. Raju v. Dinshaji Dadabhai Italia, A.I.R. 1961 A.P. 293 in which the plaint of a suit brought against a father and son, the father having been dead from before was allowed to be amended under Sec. 153, C.P.C., before the expiry of the period of limitation. I may note the following cases, though not cited at the Bar :- (1) Hazar-imal Bholaram v. Shri ramchandraswami, AIR 1934 Nagpur 55 in which an appeal instituted on behalf of a dead person was held to be not an appeal instituted in the name of a wrong person and the counsel, who had filed the appeal in court, was held to have no authority to file it because it had been terminated by the prior death of his client, (2) Noorbhoy v. Secy. of State, A.I.R. 1937 Sind 92 in which, following Tetlow v. Orela, Ltd., (1920) 2 Ch. D. 24 (infra) amendment of the plaint of a suit brought in the name of a sole deceased plaintiff was refused, (3) Mst. of State, A.I.R. 1937 Sind 92 in which, following Tetlow v. Orela, Ltd., (1920) 2 Ch. D. 24 (infra) amendment of the plaint of a suit brought in the name of a sole deceased plaintiff was refused, (3) Mst. Radhabai v. Mangia, AIR 1934 Nagpur 274 in which amendment of an appeal instituted on behalf of a dead person was refused and it was said that substitution in place of a deceased respondent is different from substitution in place of a deceased appellant, (4) Etablishment Baudelot v. R. S. Graham and Co., Ltd., (1953) 1 A.E.R. 149 in which a distinction was drawn between a suit started in the name of a wrong person as a plaintiff and a suit started in the name of a non existing person, (5) Davies v. Elsby Brothers, Ltd., (1960) 3 All. E.R. 672 in which amendment sought, after the expiry of the period of limitation for the suit, by changing the name of the defendant from "Elsby Brothers (a firm)" to "Elsby Brothers, Ltd." was refused on the grounds that the firm and the company were different entities, that the amendment involved the addition of a new defendant, namely the company, and not merely the correction of a misnomer, and that the addition of a defendant is governed by the same consideration as the addition of a plaintiff, and (6) Clay v. Oxford, (1866-67) 2 Ex. 54 and Tetlow v. Orela, Ltd., (1920) 2 Ch. D. 24 In Clay v. Oxford, (1866-67) 2 Ex. 54, a suit was commenced in the name of a person who had been dead and an application to bring on the record his legal representative was refused. Kelly C. B. said that the Common Law Procedure Act, that governed the matter, did not authorise the substitution of one plaintiff for another in such a case. The Act simply enabled a court to add or to strike out any number of plaintiffs and to allow the representative of a deceased plaintiff to continue the suit but did not allow substitution of one plaintiff for another - of one using in a representative capacity for a deceased man who never was a party. The Act simply enabled a court to add or to strike out any number of plaintiffs and to allow the representative of a deceased plaintiff to continue the suit but did not allow substitution of one plaintiff for another - of one using in a representative capacity for a deceased man who never was a party. Bramwell, B., said that the amendment was not necessary for the purpose of deter-mining in the existing suit the real question of controversy between the parties and that the application was not even one between the parties to the suit, there being no plaintiff and consequently no existing suit. Our R. 10(1) of Or. 1 is modelled on R. 2 of Or. 16 of Rules of Supreme Court, 1883, with only this difference that "suit" has been substituted for "action" and "instituted" for "commenced." The Rules of Supreme Court came up for interpretation in the other case, Tetlow v. Orela, Ltd., (1920) 2 Ch. D. 24 the facts in which were these. A suit was instituted in the name of Joseph Tetlow as plaintiff for an injunction. After the defendant filed its written statement, it was discovered that Joseph Tetlow had died some years before the institution of the suit and his business had been carried on by his widow and legal representative. There-upon the widow applied for being substituted as plaintiff. Russell, J. rejected the application and conceding that the question was of some difficulty, observed with reference to R. 2 of Or. 16 that it "means that, where an action has been commenced between two living parties by a living plaintiff, and the living plaintiff afterwards turns out to be the wrong person, an application may be made to the Court, and the Court can substitute another person for the living plaintiff or may add another person as co-plaintiff as the case may be "and that" it does not justify the Court in creating a plaintiff in an action for the first time." Referring to R. 11 of Or. 16, which is similar to our R. 19(2) of Or. 1, he observed that the names of "parties improperly joined" and the names of "parties who ought to have been joined" are the names of living persons and that the rule does not carry one any further than R. 2. The learned Judge relied upon Clay v. Oxford, (1866-67) 2 Ex. 1, he observed that the names of "parties improperly joined" and the names of "parties who ought to have been joined" are the names of living persons and that the rule does not carry one any further than R. 2. The learned Judge relied upon Clay v. Oxford, (1866-67) 2 Ex. 54 a case governed by Sec. 34 of the Common Law Procedure Act, providing that non-joinder and misjoinder of plaintiffs may be amended before the trial, and deciding that when an action is commenced in the name of a dead man, his representatives cannot be substituted as plaintiffs. There was no discussion about the period of limitation either in the arguments before the learned Judge or in his judgment; substitution of the names of the legal representatives of the dead plaintiff was refused regardless of the question of limitation for the suit. 5. On the other side are the following cases :- (1) Nistarini Dassya v. Sarat Chandra, AIR 1916 Calcutta 337 in which a suit was brought by an administratrix whose power of administration had expired previously, and the plaint was allowed to be amended, even though the period of limitation had expired, by substituting the name of the legal representative of the deceased person on the ground that the mistake was a bona fide one, (2) Gopala Krisinayya v. Lakshmana Rao, I.L.R. 49 Mad. 18 an appeal brought against a sole respondent, who had died previously, was allowed to be amended under Sec. 153, C.P.C., even though the time for appeal had expired, because it was a bona fide mistake, and (3) Mehar Singh v. Labh Singh, AIR 1932 Lahore 305 which follow the case of Gopala Kristnayya, I.L.R. 49 Mad. 18. 6. 18 an appeal brought against a sole respondent, who had died previously, was allowed to be amended under Sec. 153, C.P.C., even though the time for appeal had expired, because it was a bona fide mistake, and (3) Mehar Singh v. Labh Singh, AIR 1932 Lahore 305 which follow the case of Gopala Kristnayya, I.L.R. 49 Mad. 18. 6. Every suit is to be instituted by the presentation of a plaint; Sec. 26, C, P. C. Sec. 153 permits a court to amend "any defect or error in any proceeding in a suit" and makes it obligatory to make all necessary amendments for the purpose of determining the real question or issue raised by or depending on such proceeding." Or, 1, R. 10, reads as follows :- "(1) Where a suit has been instituted in the name of the wrong person as plaintiff ,the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff....... "(2) The Court may at any stage of the proceedings order that the name of any party improperly joined, whether as plaintiff, or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defend-ant, . . . he added." Or. 7 deals with plaints. The particulars to be contained in a plaint are mentioned in R. 1 and include the name, description and place of residence of the plaintiff and of the defendant in "so far as they can be ascertained." A plaint is a pleading as defined in Or. 6, R. 1. R. 17 of Or. 6 provides that the court may at any stage of the proceedings allow either party to amend his pleadings and must allow all such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties. I take the effect of all these provisions to be that the court has the power to strike out the name of a deceased defendant, particularly if an application for the purpose is made before the limitation for the suit expires, and to bring on the record the names of his legal representatives. I take the effect of all these provisions to be that the court has the power to strike out the name of a deceased defendant, particularly if an application for the purpose is made before the limitation for the suit expires, and to bring on the record the names of his legal representatives. I do not see any reason why the words "improperly joined" are inappropriate in respect of, or inapplicable to, a person, who was dead. There may arise a question in the case of an alive person whether he was improperly joined or not, but it does not follow that no such question can arise in respect of a dead person. So long as a party is improperly joined, his name can be removed under Or. 1, R. 10(2), regardless of the reason for which he is found to have been improperly joined. There are "necessary parties" and there are "proper parties"; the former must be joined and the latter may be joined. A person who is neither a necessary party nor a proper party cannot he joined and if he is joined, he is improperly joined. A dead person is as much included among parties who are neither necessary nor proper as a live person; as a matter of fact case of his being neither necessary nor proper is the clearest case. There may arise a doubt about a live person whether he is a necessary or proper party or not but no such doubt can arise in respect of a dead person. Reasons are required for treating a person as a necessary or proper party, not for the reverse, and consequently the class of persons improperly joined is incapable of division into two or more classes on any ground, such as death. I see no justification for excluding from the reasons for holding that a person was improperly joined the reason of his being dead. A person joined, even though no relief is sought from him or no relief can be obtained from him, is a person improperly joined regardless of the reason for which no relief is sought or can be had from him. Similarly in the case of a plaintiff, "wrong person" includes a dead person. A suit instituted in the name of a dead person is one instituted in the name of a wrong person because he cannot get the relief. Similarly in the case of a plaintiff, "wrong person" includes a dead person. A suit instituted in the name of a dead person is one instituted in the name of a wrong person because he cannot get the relief. I see no justification for saying that a dead person is not included within the meaning of "wrong person." If a dead plaintiff is not a wrong person and a dead defendant is not a person improperly joined, R. 10 would not apply and the court would have no power to remove the name of the dead plaintiff or of the dead defendant, regardless of all considerations. R. 10 permits expunction of the name of a plaintiff only if he was a wrong person and of the name of a defendant only if he was an improperly joined person; it follows that if a dead plaintiff were not a wrong person and a dead defendant were not a person improperly joined, R. 10 would not come into application at all and their names would not be expunged at all; they would not be expunged even if their names were written in the plaint under a bona fide mistake, and even if an application for expunction of their names and substitution of then legal representatives was made before the expiry of the period of limitation. Now the question that strikes one is did the legislature by using these words in R. 10 contemplate to have this result. It would be practically impossible for a plaintiff to know, at the moment of his instituting a suit, that the other plain-tiffs and the defendants are all alive. Even if he had seen them alive a few days before or even a few hours before the presentation of the plaint in the court, they might have died in the interval. The plaint is to be presented in court and the other plaintiffs and the defendants would be living at all sorts of places. The law cannot expect the impossible from a plaintiff and cannot insist upon his knowing at the time of the filing of the plaint that the other plaintiffs and the defendants are all alive. If it cannot do so it cannot penalise him for some of them being found to be dead at the time. The law cannot expect the impossible from a plaintiff and cannot insist upon his knowing at the time of the filing of the plaint that the other plaintiffs and the defendants are all alive. If it cannot do so it cannot penalise him for some of them being found to be dead at the time. People die all of a sudden without giving a notice even to their near and dear and there is nothing unusual in a person's dying without any notice to his enemy or opponent who threatens to start a legal proceeding against him. The question is how is the plaintiff to be ensured against the dismissal of his suit if the defendant happens to die just before its institution. Surely the legislature did not contemplate that a plaintiff should always sue not only the person from whom he seeks the relief but also his legal representatives to ensure against the farmer's dying before the institution of the suit. Filing a suit a few days before the expiry of the period of limitation, rushing to the residence of the defendant to verify whether he was alive on the date and hour of the institution of the suit and rushing back to the court if he had died before the institution with an application for amendment would not do because, as I pointed out, the meaning of the words "wrong person" and "improperly joined" do certainly not depend upon any question of limitation. There is no express provision made by the legislature for the plaintiff's bringing on the record the legal representatives of the deceased defendant. If there is any provision which can be availed of by him for applying to the court for amendment of his plaint by expunction of the name of the defendant, who had happened to die before the institution of the suit, and substitution of the names of his legal representatives, it is Or. 1, R. 10, only. If one concludes that the legislature must have provided for such a case, one must interpret this provision so as to effectuate its intention. 7. A plaint is nothing but a document and a document can deal only with names of human beings and not with human beings themselves. If it deals with human beings, it is only through names. If one concludes that the legislature must have provided for such a case, one must interpret this provision so as to effectuate its intention. 7. A plaint is nothing but a document and a document can deal only with names of human beings and not with human beings themselves. If it deals with human beings, it is only through names. A human being is affected by a document when it contains a name and the human being is identified with the name. Identity between the name and a particular human being cannot be established by the document itself; it must be established by other material. Therefore, it would not be strictly correct to say that a suit is instituted by, or against, a dead person. All that happens when a suit is said to be instituted by, or against, a dead person, is that the plaint contains a name of a party, which name was borne by a person found to be dead. But at the time when the plaint is filed there is nothing to establish the identity of the name with the person who had died. If the plaintiff admits later that the name he had mentioned in the plaint was that of the person who was found to have died, the admission would establish the identity, but in the absence of such an admission it would be practically impossible to prove that the name given in the plaint was of the dead person. Even if the address given in the plaint is the address of the dead person, there would have to be evidence of this fact and this evidence must necessarily be dehors the plaint. Therefore, on looking at a plaint the court can never say that it is by a dead person or against a dead person. 8. I object to the statement that a suit is filed by, or against, a dead person. As far as the plaint is concerned there is nothing dead. If there is no person alive answering the description given in it, it is preferable to say that it is filed by, or against, a wrong person or a person improperly impleaded. If there is no person answering the description given in the plaint of the person sued, it would be a case of suing a fictitious person. If there is no person alive answering the description given in it, it is preferable to say that it is filed by, or against, a wrong person or a person improperly impleaded. If there is no person answering the description given in the plaint of the person sued, it would be a case of suing a fictitious person. There is no distinction in law between a fictitious person and a dead person; so long as the person did not exist at the time of the institution of the suit, it is immaterial if he had existed once upon a time or had never existed at all. If one holds that a dead person is not a wrong person or a person improperly joined, one would have to hold that a fictitious person also is not a wrong person or a person improperly joined. But I have come across no such decision and there will be considerable difficulty in accepting the proposition. A slightest clerical mistake in the description of a party would at once bring into existence a fictitious person; on account of the mistake, however trifling it may be, the description can strictly be said not to apply to the living person meant to be impleaded and, therefore, it must be of a fictitious person; but such a mistake is always allowed to be corrected, i.e. the name of a real person is allowed to be substituted vices that of a fictitious person. It is really substituting the name of a person from whom relief is sought vice that of a person from whom no relief can be, or is, sought and the same is the case when in place of a dead person's name that of his legal representative is substituted. 9. The theory of nullity advanced in some cases has nothing to commend itself. ''Nullity" is not a word used in the Code of Civil Procedure and there is no law laying down when a plaint is a nullity and what are the consequences of a plaint being a nullity. It is no use saying that a plaint by, or against, a dead person is a nullity and that a plaint that is a nullity cannot be amended under Or. 1, R. 10, because both the statements involve assumptions and are not axioms or universally accepted true statements. It is no use saying that a plaint by, or against, a dead person is a nullity and that a plaint that is a nullity cannot be amended under Or. 1, R. 10, because both the statements involve assumptions and are not axioms or universally accepted true statements. The statement that such a plaint is a nullity and that it cannot be amended is no better than a bald statement that the court cannot amend a plaint by or against a dead person. The assumptions cannot supply the reason for the statement for the simple reason that they have not the backing of the law. It seems that the theory on nullity is based on the view that there is no plaintiff or no defendant. If the dead person is only one of the several plaintiffs or the dead defendant is only one of the several defendants, it cannot be said that there is no plaint and no suit. So long as there are at least one plaintiff and at least one defendant, there is a plaint as defined in Or. 7 and there is a properly constituted suit. If the courts that believe in the theory of nullity make no distinction between a suit in which the dead person was the only plaintiff or the defendant and a suit in which he was only one of the plaintiffs or defendants, it means that the theory is illogical. The meanings of the words "wrong person" and "improperly joined" do not depend upon whether the plaintiff or the defendant whose name is sought to be removed was the sole plaintiff or defendant or one out of several plaintiffs or defendants. Further even when the plaintiff or defendant is the sole plaintiff or defendant, as far as the plaint is concerned, it is a plaint existing in fact and cannot be treated as a nullity. All the requirements of the plaint are there. 10. "Nullity" is automatic and cannot remain in suspense. The very meaning of nullity is that the thing does not exist in the eye of law, consequently if an act is a nullity, it must be possible to say at the time when it was done that it was a nullity. A declaration given later that a certain act is a nullity is only a declaration of a state of facts; the declaration itself does not bring about nullity. A declaration given later that a certain act is a nullity is only a declaration of a state of facts; the declaration itself does not bring about nullity. Consequently if a plaint is a nullity, not only must it be a nullity at the moment of the presentation but also the nullity must be apparent at that moment. Now a plaint by or against a dead person cannot, at the time of its presentation, be held to be a nullity (unless it itself recites the fact of the death); a summons will be issued on its basis and it is only when later it is found that the plaintiff or the defendant had been dead that the question will arise of the effect of the plaint having been filed by or against a dead person. It would then be too late to discover its being a nullity. It would be impossible to say that there was no plaint and there was no suit when the court had already taken cognizance of the suit and issued a summons to the defendant. 11. The injustice arising out of refusal to allow such a plaint to be amended has been recognised in several decisions and the learned Judges have been at pains to find some justification for allowing the amendment. I must say, with great respect, that the reasons given by them in support of allowing an amendment are not sound. Instead of adopting a bold line and holding that such a plaint is not such a nullity as cannot be amended at all, they have tried to justify an amendment by reasons which will not bear scrutiny. It is high time that the law was placed on a sound and firm footing. If a dead person is not comprised in the expressions "wrong person" and "improperly joined," it will be wrong to apply Or. 1, R. 10, simply on the ground that the mistake of the plaintiff was bona fide or due to his ignorance of the fact of the death or that the period of limitation for the suit has not expired. The fact that the period of limitation has not expired is a reason for not allowing an amendment; if the plaintiff can bring a fresh suit, why should he not do it? The fact that the period of limitation has not expired is a reason for not allowing an amendment; if the plaintiff can bring a fresh suit, why should he not do it? It is not correct, as was observed in the cases of Kannagara Ismail, AIR 1955 Madras 644 and C. Raju, A.I.R. 1961 A.P. 239, that there is no difference between allowing an amendment and asking the plaintiff to file a fresh suit; there may be no difference as regards the period of limitation but there is certainly this difference that in one case no further court-fee is to be paid and in the other case fresh court-fee has to be paid. The argument that if the plaintiff can file a fresh suit he may as well be allowed to amend the plaint is met by the reply that if he can file a fresh suit he should be left to that remedy. It is certainly not at the discretion of the court to circumvent the law of court-fees or to dispense with the payment of the court-fee. Another reason sometimes given is that if an appeal filed against a dead person can be allowed to be amended, a suit filed against a dead person also should be allowed to be amended, but the analogy does not hold good. In an appeal the parties are fixed by the decree; not so in a suit. An appellant who files an appeal against the parties mentioned in the decree, is safe. It was conceded by Sri Iqbal Ahmad that if a party dies after a decree is passed and before an appeal is filed and the appeal is filed against him, the amendment of the appeal is governed by the rule of equity, justice and good conscience. An appeal is nothing but a continuation of the suit and any defect in the memorandum of appeal is of no consequence and cannot render the suit null and void. It is not proper to place such a defect in a plaint on the same footing as one in a memorandum of an appeal. 12. An appeal is nothing but a continuation of the suit and any defect in the memorandum of appeal is of no consequence and cannot render the suit null and void. It is not proper to place such a defect in a plaint on the same footing as one in a memorandum of an appeal. 12. In my opinion the only correct view to take is that a person who was dead when the suit was instituted on his behalf or against him is a "wrong person" within the meaning of R. 10(1) or a person "improperly joined" within the meaning of R. 10(2), of Or. 1, as the case may be, and that the court has the power at any stage to expunge his name and to substitute the names of his legal representatives. The power is discretionary; the word used in both the provisions is "may" and in deciding whether in a particular case it should be exercised or not, the court will take into consideration whether the mistake was bona fide or not and whether the period of limitation for the suit has expired or not. That the mistake was bona fide and that the period of limitation for the suit has not expired are not the facts which confer jurisdiction upon a court and are not to be considered in deciding whether the power conferred by R. 10 exists or not. 13. Sec. 153 also empowers a court to allow amendment but it is a "general power to amend" and when there is a particular power to amend conferred by Or. 1, R. 10, it would not be necessary to consider this power. 14. I find that the learned Judge of the court of small causes exercised his discretion properly in allowing the plaint to be amended. The second question involved in this revision, therefore, does not arise and need not be answered. 15. The revision should be dismissed with costs. R.A. Misra, J. - I agree.