Judgment of the court :- This second appeal has been filed by the son and widow of deceased defendant no. 1. They were substituted in his place in the lower appellate court. The suit was for a declaration that the sale deeds dated the 7th June, 1961, executed by defendant no. 2 in favour of defendant no. 1 were binding on the plaintiffs and defendant no. 2. For the purposes of the decision of this appeal, it is not necessary to state the various grounds on which the aforesaid relief was claimed and the pleas taken in defence by defendant no. 1. The trial court decreed the suit. The defendant no. 1 appealed. This was in the year 1965. On 26th December, 1966, defendant no. 1 died. On 8th February, 1967, the appellants filed a petition for their substitution in place of deceased defendant no. 1. The plaintiff respondents had entered appearance in the appeal and in the presence of their lawyer an order substituting the appellants in place of deceased defendant no. 1 was passed on 31st March, 1967. On 22ndJune, 1967, the plaintiff respondents filed a petition that defedant no. I had also left five daughters who had not been substituted by the appellants. The appellants filed a rejoinder that defendant no. 1 had left no daughters. An enquiry was held under Order 22 Rule 5 of the Civil Procedure Code by the lower appellate court and it found that the case of the plaintiff respondents was correct. It accordingly held that the appeal had abated on account of non-substitution of the daughters of deceased defendant no. 1 and dismissed it. The present appeal is directed against that order. 2. Learned counsel appearing for the appellants has challenged the decree of the lower appellate court on the grounds: (1) that as the order dated the 31st March, 1967, was passed in presence of the plaintiff respondents, they could not get it revised subsequently on the ground that defendant no. 1 had also left five daughters as his heirs and legal representatives and (2) that the appellants represented the estate of deceased defendant no. 1 and, therefore, there could be no abatement of the appeal even if five daughters of defendant no. 1 were not brought on the record of the appeal in the lower appellate court. 1 had also left five daughters as his heirs and legal representatives and (2) that the appellants represented the estate of deceased defendant no. 1 and, therefore, there could be no abatement of the appeal even if five daughters of defendant no. 1 were not brought on the record of the appeal in the lower appellate court. In support of his second contention that the estate of deceased defendant no. 1 was represented by the appellants and there was no abatement, he had placed reliance on the decision of the Supreme Court in the case of Dolai Maliko and another Vs. Krushna Chandra Patnaik and others 1. That was also a case where some of the heirs only of one of the deceased appellants were substituted in his place and others were left out. It was held by the Supreme Court that there was no abetment as those heirs and legal representative who were substituted in place of the deceased appellant, represented the estate. However, their Lordships added that if there was fraud or collusion or there were circumstances which indicated that there had not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried, in such a case the estate could not be represented by only some of the heirs. They also pointed out that the ratio decidendi of that case might not apply to cases where the heirs were deliberately left out. Arguments have been advanced by learned counsel for both the parties before us on the question whether in the circumstances of the present case non-substitution of the daughters of deceased defendent no. 1 by the appellants can be said to be a fraudulent or deliberate omission. We do not consider it necessary to go into that question as, in our opinion, the appeal must succeed on the first contention of learned counsel for the appellants. 3. In support of his first contention learned counsel for the appellants has placed reliance on a Bench decision of this court in the case of Raja Sri Sri Jyoti Prasad Singh Deo Bahadur Vs. 3. In support of his first contention learned counsel for the appellants has placed reliance on a Bench decision of this court in the case of Raja Sri Sri Jyoti Prasad Singh Deo Bahadur Vs. Samuel Hanry Seddon.2 In that appeal also a similar question arose and Fazal Ali J., as he then was, dealing with the matter observed as follows : “Now, it appears that after the death of the late Raja the present appellant made an application for being substituted for him in this appeal on the allegation that he was the legal representative of the deceased appellant. Notice of this application was served on all the respondents including defendant no. 10 who has been succeeded by the new receivers as well as defendants 7 to 9, but as none of them objected to the appellant's petition, he was duly substituted in the place of his deceased father. It appears to me therefore, that so far as the present proceedings are concerned, the question cannot be re-opened and it must be deemed to have been constructively decided that the appellant is the legal representative of his deceased father and is entitled to prosecute the appeal in this capacity. If the old receiver could not raise the present objection, I do not see how the present receivers can do so. None of the alleged heirs of the Raja has appeared in this Court to oppose the appellant's petition or applied before us to be substituted in place of the deceased Raja nor have we any material before us which would justify the view that so far as the present appeal is concerned, the present appellant who is admittedly the senior most member of a Hindu family, cannot represent the other members of the family. In these circumstances, I am not inclined to entertain the objection at this late stage of the case, The question, however, as to what will be the rights inter se of the present appellants and the other heirs of the Raja is one which need not be decided in this Court as it is always open to any party who claims to be interested in the royalties to claim his share from the appellant in a duly constituted suit if necessary". Chatterji J., who delivered separate judgment with reference to the aforesaid question, made the following observation: "Before dealing with the merits of the appeal I should dispose of the preliminary objection of the new receivers. Their contention is that although the estate within which the disputed villages lie is an impartible estate which on the death of the original appellant devolved on his eldest son the present appellant, the royalties for which the suit was brought were under the law not part of the impartible estate but were the personal property of the deceased proprietor and as such devolved after his death on his heirs under the ordinary law of inheritance; The appellant's answer to this is that the application for substitution which was made by him was based on the allegation that he was the legal representative of the deceased appellant and notice of that application having been served on the respondents including the late receiver, substitution was made without any objection, and therefore, it was not open to the present receivers who merely stepped into the shoes of the old receiver to challenge the order of substitution which was binding on the latter. In my view, this contention of the appellant must be accepted. When in a suit or an appeal any party dies, the question as to who is his legal representative must be decided by the court and its decision must be binding on the parties. Order XXII, rule 5 of the Civil Procedure Code provides for the decision of such question and the fact that an order passed under that rule is not appealable shows that the decision is of a summary character and for the purpose of the suit or appeal the person who is substituted in place of the deceased party shall be deemed to be his legal representative. It cannot be disputed that an ex-parte order is as much binding on the parties as a 'contested order. The preliminary objection must therefore, be overruled." In our opinion, the ratio decidendi of that case is fully applicable to the facts of the case before us. It has been contended before us by learned Counsel appearing for the plaintiff respondents that the decision is distinguishable because it was a case of impartible estate and further that in the instant case the appellants denied that defendant no. It has been contended before us by learned Counsel appearing for the plaintiff respondents that the decision is distinguishable because it was a case of impartible estate and further that in the instant case the appellants denied that defendant no. 1 died leaving any daughters, and therefore, could not represent them. The decision of their Lordships on the point was not based on these facts. The main basis of the decision, as will appear from the passages quoted above was that once a party failed to raise some objection to the substitution of a person and an order for substitution was passed in his presence, he could not get the matter reopened subsequently. In another Bench decision of this Court, in the case of Maharajadhiraj Sir Kameshwar Singh Versus Govind Lat Nakphopha3, it was held that once an executer was substitued in appeal in place of the appellant without any objection on the part of the judgment debtor, it was not open to the latter to raise objection at a subsequent stage of the same proceeding that the executer could not represent the estate of the original appellant. It has been contended by learned counsel for the plaintiff respondents that section II of the Civil Procedure Code does not apply in terms to such case and the plea of resjudicata or estoppel on equitable grounds cannot be raised against Statutes. He relies on the well known maxim that there is no estoppel against statute and his contention is that if all the heirs are not brought on the record, the appeal abates, an obvious fallacy in this argument. What the statute requires is that the heirs and legal representatives of the deceased should be substituted in his place. There is no provision in the Code as to who the heirs and legal representatives of the deceased are. That is a matter always to be decided by the courts and if some persons make &.n application claiming that they alone are the heirs and legal representative for the deceased, no objection is raised to that and an order is passed substituting them, then subsequently it cannot be agitated that they alone are not the heirs and legal representatives of the deceased. Learned Counsel for the plaintiff respondents has also placed reliance on the decision of the Supreme Court in the case of Nookala Setharamaiah Vs. Learned Counsel for the plaintiff respondents has also placed reliance on the decision of the Supreme Court in the case of Nookala Setharamaiah Vs. Kotaiah Naidu and ors.4 In our opinion, the ratio decidendi of that case is not of any help to the plaintiff respondents. In our opinion, therefore the court below has erred in reopening the matter of substitution and thereafter holding that the appeal abated on the ground of non-substitution of the daughter, of deceased defendant no. 1. 4. In the result the appeal is allowed, the judgment and decree of the court of appeal below are set aside and the case is sent back to the lower appellate court for decision of the appeal on merits. In the circumstances of the case, there will be no order as to costs so far as this Court is concerned. Appeal remanded.