A. B. MURGOD, J. ( 1 ) THIS appeal is filed by the defendants under order 41, Rule 1 read with Section 96, CPC against the judgment and decree dated 25-2-1987 passed in o. s. No. 2017 of 1984 by the 14th additional city civil judge, Bangalore city, decreeing the suit for permanent injunction. ( 2 ) THE suit was filed describing the plaintiff as Smt. S. Ranganayaki setlur, wife of late s. s. setlur represented by her power of attorney holder Sri p. k. raman, the appellants are the commissioner, the assistant executive engineer, the revenue officer and the assistant revenue officer of the corporation of the city of Bangalore. They were defendants 1 to 4 before the trial court. Hereinafter the parties arc referred to by their ranks in the trial court. ( 3 ) THE plaintiff sought the relief of permanent injunction in respect of plaint schedule property which is part and parcel of old survey No. 64, new survey No. 61, out of 10 1/2 acres the remaining portion after sale renumbered as old No. 13, new No. 10 situatcd in formerly akkithimmanahalli, now called as langford town. Bangalore. ( 4 ) THE allegations in the plaint were that the plaintiff was in peaceful possession of the property and the plaintiff had spent Rs. 30,000/- for levelling, bunding, repairing of drains and the well and that the defendants were threatening criminal action and were trying to trespass on the property. ( 5 ) THE defendants contested the suit denying the plaintiffs possession and her right to the property. The defendants contended that the plaintiff was not in possession and the corporation of the city of Bangalore was in possession of the property. Therefore the trial court framed the following three issues :"1. Whether the plaintiff proves that she was in legal possession of the suit property on the date of the suit? 2. Whether she further proves that defendants interfered with her possession? 3. What order and decree?"after trial, the suit was decreed in favour of the plaintiff. All through the proceedings, plaintiff Smt. S. Ranganayaki was represented by the power of attorney holder Sri p. k. raman. During the trial he produced among other documents, the power of attorney executed by Smt. Ranganayaki at ex. P. 1, dated 13-8-1979. 3. What order and decree?"after trial, the suit was decreed in favour of the plaintiff. All through the proceedings, plaintiff Smt. S. Ranganayaki was represented by the power of attorney holder Sri p. k. raman. During the trial he produced among other documents, the power of attorney executed by Smt. Ranganayaki at ex. P. 1, dated 13-8-1979. During his evidence Sri p. k. raman in paragraph 12 of his deposition as P. W. 1, on 6-3-1986 asserted the following :"it is true that plaintiff Smt. Ranganayaki amma is a good friend of mine. She is at present in chandigarh. But she is the permanent resident of Bangalore. "after the institution of the appeal, the appellants moved for the stay of the operation of the decree. This court after admitting the appeal allowed the application for stay when plaintiff-respondent through her power of attorney Sri p. k, raman was represented by a counsel who was absent. This is apparent from the order dated 20th july, 1987. Thereafter Sri p. k. raman, the power of attorney of the plaintiff through his Advocate filed an application la. Ii for vacating the stay order. That application came to be rejected. Subsequently i. a. iii came to be filed by one Smt. Mallika anantharaman for impleading her as an additional respondent. In the supporting affidavit she stated that Smt. Ran- ganayaki was her mother and she had diedon 8-3-1981 and she wanted to come on record as her legal representative. This application was opposed. After the application la. Ill was filed, the appellants took a clue from the averments found in the application filed by Smt. Malltka anantharaman and filed an application i. a. iv for raising additional grounds in the appeal memo to contend that Smt. Ranganayaki had died in the year 1981 and the suit filed in her name in the year 1984 was a nullity and all the proceedings in such a suit were nullities. There were no objections filed to this application tor taking up additional grounds by the appellants. The court heard l. as. 3 and 4 and allowed them by order dated 26-10-1990. It was ordered on i. a. ill that Smt. Mallika anatharaman be added as a party-respondent. There were no objections filed to this application tor taking up additional grounds by the appellants. The court heard l. as. 3 and 4 and allowed them by order dated 26-10-1990. It was ordered on i. a. ill that Smt. Mallika anatharaman be added as a party-respondent. Subsequently Sri p. k. raman also filed an application i. a. v for implcading him as respondent 5 on the ground that he had entered into an agreement to purchase the property in the suit from Smt. Ranganayaki. That application came to be dismissed. By virtue of order dated 26-10-1990 Smt. Mallika anantharaman has come to be impleaded as additional respondent and she is represented by a counsel. ( 6 ) WHILE allowing i. a. ill for impleading sml. Mallika anantharaman, this court (shri n. d. v. b. j.) has observed as under :"in the instant case, if the appeal is allowed it is obvious that the interests of the applicant to i. a. ill could also be adversely affected. In that context it appears to me that it would be just and proper to allow her to come on record as a party respondent. What are the contentions which she in law, is entitled to raise in the appeal need not be considered at this stage. Any opinion expressed in that context is likely to affect the hearing of the appeal. What should be the course to be adopted by this court in appeal after hearing all concerned is a matter to be decided. "subsequently the defendants made an application for review of the order dated 26-10-1990, the prayer for review was rejected by the order dated 21st september, 1992 with the observations as under :"it is clear that the question as to whether the decree was a nullity and whether the suit could have been filed in the way and manner as it was done, etc. , are all questions which will have to be argued at the time of the hearing of the appeal. It is exactly for these reasons that this court took care to keep the contentions open for arguments at the time of hearing of the appeal. " accordingly when the appeal was taken up for hearing, the learned counsel for the appellants contended that the suit filed in the name of a dead person was a nullity and as such the entire proceedings arc nullities. " accordingly when the appeal was taken up for hearing, the learned counsel for the appellants contended that the suit filed in the name of a dead person was a nullity and as such the entire proceedings arc nullities. He therefore did not go into the merits of the case. Sri g. s. vishwcshwara, the learned counsel appearing for Smt. Mallika anantharaman is represented by Sri k. . s. Sctlur. Learncd Advocate and he submitted that when the property was invaded by the defendants, Sri p. K raman as the person in possession of the properly had to defend and protect the property on behalf of Smt. Ranganayaki scilur and the action taken by him was bona fide action and he was competent to do so as an executor de son tort under Section 303 of the Indian succession Act, 1925. In the alterna- tive he submitted that the appeal filed by the defendants was against a dead person and as such it was a nullity and was not maintainable and therefore this court has to so observe that the appeal is a nullity and leave the matter at that leaving the execulability of the impugned decree to be agitated in the executing court, if at all the decree holder chooses to execute the decree. He also submitted that the defendants could file a suit for declaration thai the impugned decree is a nullity and according to him they cannot ask for that relief in this proceeding. ( 7 ) IN view of these submissions, the points that arise for consideration are : (1) what is the effect of death of Smt. Ranganayaki setlur on the suit and the appeal? (2) to what relief the parties arc entitled? ( 8 ) THE contention of Sri gopala gowda, learned counsel for the appellants is that the death of Smt. Ranganayaki setlur came to the notice of the court for the first time when Smt. Mallika anantharaman made an application for bringing her on record as an additional respondent by filing i. a. ill during the pendency of the appeal. According to him since the suit has been filed on 22-6-1984, i. e. , after the death of Smt. Ranganayaki setlur, the suit filed in her name by Sri p. k. raman on the strength of power of attorney ex. P. 1 was a nullity. According to him since the suit has been filed on 22-6-1984, i. e. , after the death of Smt. Ranganayaki setlur, the suit filed in her name by Sri p. k. raman on the strength of power of attorney ex. P. 1 was a nullity. The submission of the learned counsel is that with the death of Smt. Ranganayaki on 8-3-1981, the power of attorney ex. P. 1, dated 13-8-1979 came to an end and Sri p. k. raman had no competency to institute the suit and the suit in the name of Smt. Ranganayaki who subsequently was discovered to have died on 8-3-1981 is nullity and therefore the decree made in her favour is also contended to be a nullity. In this behalf, he relied upon four decisions. The first decision cited by him is c. Muthu v bharat match works, sivakasi, 1963 (2) mys. L. j. 341 in which a division bench of this court held that a suit brought against a person who is later discovered to have been dead at the lime the suit was filed cannot be amended by substituting another person as defendant. In that suit it was later discovered that the defendant was dead on the date the suit had been instituted. Accordingly the court held that the suit filed against a dead person was a nullity. On parity of reasoning, it is contended that the suit filed by a person who is subsequently discovered to have died earlier to the date of institution of the suit is a nullity. The second decision relied on by the appellants is amar kaur v sadhu singh and others, AIR 1961 punjab 57. The learned counsel relied on paragraphs 7, 8 and 14. They read as under :"7. In AIR 1938 nag. 458, niyogi, j. , was dealing with a suit that had been filed in the name of a dead plaintiff and he took the view that it was a case of wrong person who was made a plaintiff and the defect was capable of being cured under order 1, Rule 10, CPC by permitting his legal representative to be substituted to his place. In dealing with the matter, his lordship observed : "it appears to me that the distinction drawn between a suit filed by a dead plaintiff and one filed in the name of a wrong person as plaintiff is without any difference. In dealing with the matter, his lordship observed : "it appears to me that the distinction drawn between a suit filed by a dead plaintiff and one filed in the name of a wrong person as plaintiff is without any difference. The suit filed in the name of a dead plaintiff is manifestly one that is filed in the name of a wrong plaintiff. "with all respects 1 find myself unable to agree with these observations. In my opinion the powers under order 1, Rule 10, CPC cannoi he exercised to substitute a different person for a dead plaintiff or appellant. The 'person' referred to in this Rule means a person in existence who may, of course, be either a human being or a legal person capable of suing or being sued, but it does not include a fictitious person or a person who having died is no longer in existence on the dale of the institution of the suit or appeal. A person who is dead has no existence, either in fact, or in law, and he is incapable of instituting a suit or an appeal or performing any act. For the same reason no attorney or counsel of his would be competent to file an appeal or institute a suit, as no one can act for, or on behalf of a person who is dead and has lost his existence. 8. The mistakes of identity that can be corrected under order 1, Rule 10, CPC are those where through inadvertence or bona fide mistake a wrong person is made a party in place of the one who is the real party. By substituting the name of the correct party the court merely permits the person wrongly impleaded to walk out and his place to be taken by the right one. But where an appeal or a suit has been instituted in the name of a person who is not in existence, the very act of instituting the suit or lodging the appeal is a nullity and thus there has been no question of putting in his place another as a plaintiff or an appellant. 14. Section 153, CPC empowers the court at any time to amend any defect or error in any proceeding in a suit and to make all necessary amendments for determination of the real question or issue raised before it. 14. Section 153, CPC empowers the court at any time to amend any defect or error in any proceeding in a suit and to make all necessary amendments for determination of the real question or issue raised before it. Undoubtedly these powers can also be exercised by an appellate court, but before such powers can be invoked, there must be a valid suit or proceedings before the court. Order xli, Rule 1, CPC lays down that : "every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. " for the proper institution of the appeal presentation by the appellant or his authorised agent is necessary. In the present case the appellant neither signed nor presented the memorandum of appeal and it was only a counsel authorised by his wife who presented the memorandum in the appellate court. He purported to act on the power of attorney given to him by the appellant's wife, whose authority to act for the appellant ramlal itself had come to an end by the death of ram lal prior to the presentation of the appeal. Thus memorandum of appeal was itself a nullity and as such there were no proceedings before the court in which it could exercise its powers of amendment under Section 153, CPC and allow the legal representatives of the deceased appellant to be substituted in his place. Therefore from which ever angle the matter be viewed, there is no escape from the conclusion that the order of the learned single judge is correct. " according to the above decision, where an appeal or a suit has been instituted in the name of a person who is not in existence the very act of instituting the suit or preferring the appeal is a nullity and there is no question of putting in his place another person as plaintiff or appellant. ( 9 ) THE third decision referred to by the learned counsel for the appellant is reported in mara mohideen v v. o. a. mohamed and others, AIR 1955 Madras 294. The learned counsel relied on paragraph 12. That reads as under :"12. In our opinion the quotations set out correctly express the law in India also. ( 9 ) THE third decision referred to by the learned counsel for the appellant is reported in mara mohideen v v. o. a. mohamed and others, AIR 1955 Madras 294. The learned counsel relied on paragraph 12. That reads as under :"12. In our opinion the quotations set out correctly express the law in India also. If however imperfectly and incorrectly a party is designated in a plaint the correction of the error is not the addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of intention of the party and if the court is able to discover the person or persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provided the mistake was bona fide vide order 1, Rule 10, CPC such an amendment does not involve the addition of a party so as to attract Section 22 (1), Limitation Act, suits by or on behalf of dead persons stand in a different category. The principle that a misdescription could be corrected by amendment could not obviously be applied to such a case but this is far from saying that merely because the law does not recognise the firm as being a legal entity, the firm name could not indicate or designate the individuals composing the firm. "in the above decision the court was dealing with the scope of order 1, Rule 10 (2) and order 30, Rule 1, CPC for correcting the misdescription of parties and held if however imperfectly and incorrectly a party is designated in a plaint the correction of the error is not the addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of intention of the parly and if the court is able to discover the person or persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provided the mistake was bonafide vide order 1, Rule 10, CPC and such an amendment does not involve the addition of a party so as to attract Section 22 (1), Limitation Act and suits by or on behalf of dead persons stand in a different category and the principle that a misdescription could be corrected by amendment does not apply to such a case. ( 10 ) THE last decision relied on by the appellants is bai pani vankar v madhabhai calabhai paiel, AIR 1953 Bombay 356 in which the learned chief Justice chagla in paragraph 2 has observed as under :"now part from authorities, i should have said that the appeal that was preferred on 19-1-1951 was clearly a nullity. The appellant being dead, the pleader who preferred the appeal has no authority to prefer any appeal and the vakalathnama signed in his favour had came to an end. If the appeal was a nullity, no order could be made in that appeal which would be an effective Order, and therefore the learned district judge was right in refusing to direct that the petitioner should be substituted in place of the deceased appellant. An effective order under order 1, Rule 10 can only be made provided there is a suit or an appeal before the court, but if the suit or the appeal is a nullity, then any order made in that suit or appeal is equally a nullity and the learned judge rightly relied on the decision of Mr. Justice mulla in rampratap v gourishankar, AIR 1924 Bombay 109 (a ). "from the facts narrated above in the appeal on hand, it transpires that death of Smt. S. Ranganayaki came to the notice of the court for the first time when application i. a. ill was filed by Smt. Mallika anantharaman. It is undisputed that Smt. S. Ranganayaki was not alive on the date of institution of the suit. With the death of Smt. S. Ranganayaki on 8-3-1981 the power of attorney executed in favour of Sri p. k. raman under ex. P. 1 had come to an end. It is undisputed that Smt. S. Ranganayaki was not alive on the date of institution of the suit. With the death of Smt. S. Ranganayaki on 8-3-1981 the power of attorney executed in favour of Sri p. k. raman under ex. P. 1 had come to an end. The law is clear that a suit or an appeal in the name of a person who is not in existence on the date of institution is a nullity. The suit instituted in the name of Smt. S. Ranganayaki has been subsequently discovered to be one instituted in the name of a person who was not alive on the date of suit. Having regard to these facts, the suit out of which the present appeal arises was filed by a person who is later discovered to have died on 8-3-1981, ie. , earlier to the date of suit on 22-6-1984. Therefore the appeal arises out of the suit filed by a person who was dead and a suit filed by a person who was not in existence is a nullity. ( 11 ) THE contention of the learned counsel Sri setlur is that the action taken by Sri p. k. raman was in the capacity of an agent of Smt. Ranganayaki sctiur and according to him it falls under Section 303 of the Indian succession Act, 1925. That Section reads as under :"section 303. Executor of his own wrong. A person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong. Exceptions. (1) intermeddling with the goods of the deceased for the purpose of preserving them or providing for his funeral or for the immediate necessities of his family or properly, does not make an executor of his own wrong. (2) dealing in the ordinary course of business with goods of the deceased received from another does not make an executor of his own wrong. " the submission of Sri setlur tantamount to saying that Sri raman was aware of the death of Smt. Ranganayaki setlur and he acted to protect her property knowing that she had died. But his version from the witness box referred to earlier is to the contrary. " the submission of Sri setlur tantamount to saying that Sri raman was aware of the death of Smt. Ranganayaki setlur and he acted to protect her property knowing that she had died. But his version from the witness box referred to earlier is to the contrary. Even in the year 1986 he has asserted that Smt. Ranganayaki was alive. It is on that basis the court proceeded to judgment and passed the decree in favour of the plaintiff. The contention of Sri sctiur that the action of Sri raman as power of attorney holder is protected under Section 303 of Indian succession Act, 1925 is therefore untenable. Sri raman has as- serted that in the year 1986 Smt. Ranganayaki was alive. It is therefore not open to him to contend in this appeal that his action was that of an executor of his own wrong under Section 303 which implies that he was aware of the death of smt ranganayaki. As intermeddling with the goods of the deceased for the purpose of preserving them does not make one an executor of his own wrong, as per exception noted above, it is not open to Sri setlur to contend that the action of Sri raman could be justified as one done for protecting the property from invasion of the appellants. Viewed from any angle, justification under Section 303 of the Indian Succession Act is not available to the respondent. Section 303 or Section 304 of the Indian succession Act, 1925 do not confer rights on any person who intermeddles with the property of a deceased person. A suit by an intcrmeddler to protect the property of a person who is not alive is entirely different from a suit in the name of a person who is not alive. The submission of the learned counsel that the action of Sri raman the power of attorney holder in instituting the suit in the name of Smt. Ranganayaki is saved by Section 303 Indian succession Act, 1925 from resulting into a nullity is not acceptable. ( 12 ) THE next submission of the learned counsel Sri setlur is that the appeal being one against a dead person is a nullity and therefore this court should so observe and leave the matter at that. This submission is also not acceptable. ( 12 ) THE next submission of the learned counsel Sri setlur is that the appeal being one against a dead person is a nullity and therefore this court should so observe and leave the matter at that. This submission is also not acceptable. In the first place, it is not open to him to contend that the suit was competent and appeal alone is a nullity. The death of Smt. Ranganayaki setlur is disclosed only during the pendency of the appeal. Therefore the court has to find out the logical effect of death of Smt. Ranganayaki on all the proceedings commencing from the suit itself. Since Smt. Ranganayaki setlur was not alive when the suit was instituted and since Sri raman instituted the suit in the name of Smt. Ranganayaki as power of attorney holder, the suit instituted in the name of Smt. Ranganayaki setlur was a nullity. Therefore since the suit was a nullity the decree passed in the suit was a nullity and all the proceedings arising out of that suit are nullities. It is to be so observed in this appeal because the death of Smt. Ranganayaki has come to light only during the pendency of the appeal. ( 13 ) SRI setlur submitted that he has filed an application for the amendment of the cause-title. By proposed amendment, he wants to say that Smt. Ranganayaki setlur is dead and the action is by Sri p. k. raman the executor de son ton. Since it is held that the action is a nullity, it is not permissible to allow such amendment. On that ground the amendment needs to be rejected and accordingly it is rejected. For these reasons, the following order as passed : ( 14 ) THE suit out of which the present appeal arises was a nullity and the judgment and decree dated 25-2-1987 passed in o. s. 2017 of 1984 are nullities. The appeal therefore does not survive for consideration. Parties to bear their own costs, at this stage, it is brought to the notice of the court that an application filed on behalf of Smt. Mallika anantharaman calling on Sri p. k. raman to produce the documents taken back from the proceedings is pending. Since it is observed that the appeal does not survive, the application also does not survive for consideration. --- *** --- .