J U D G M E N T On 29-10-1997 this court made the following order: Admit in view of the substantial question of law raised in ground nos. 12 (b) and (c). 2. The said questions read as hereunder: 12 (b): Whether the agreement of sale which is not supported by the scribe can be relied upon for granting specific performance? 12 (c) : Whether an agreement of sale written on stamp papers purchased nearly one year prior to the supported date of execution can be accepted without any explanation forthcoming from the plaintiff? This court also granted interim stay in CMP.No.12153 of 1997. 3. Sri Subba Reddy, representing Sri VL.N.G.K. Murthy, the learned counsel for the appellants had pointed out that though the second appeal was admitted on the questions referred to supra, there is yet another important question, which had been shown in ground no.12 (a) and this being a substantial question of law, the same may also be considered by this court. The said question is as hereunder: 12 (a): Whether the judgment of the lower appellate court, which records the presence of a dead person as having argued for the respondents before it is a judgment in the eye of law ? 4. It is needless to say that the other questions, which had been specified supra on the strength of which the second appeal had been admitted may have to be considered only after considering this question. 5. Sri Subba Reddy, the learned counsel representing the appellants had pointed out to the relevant portion of the docket in AS.No.52 of 1990 on the file of the Court of Additional District Judge, Srikakulam and would submit that in the light of the same the fact that the respondents’ advocate in the said appeal died, was within the knowledge of the court and hence it was recorded that there was no representation and respondents were called absent and set exparte and the judgment had been reserved. The counsel also would point out that the judgment in AS.No.52 of 1990 referred to supra also does not reflect whether any arguments had been advanced by the counsel on record. 6. The counsel also would point out that the judgment in AS.No.52 of 1990 referred to supra also does not reflect whether any arguments had been advanced by the counsel on record. 6. The learned counsel would also maintain that the learned Additional District Judge, Srikakulam after framing the points for consideration at para no.8, after recording the findings, ultimately allowed the appeal by setting aside the judgment and decree of the court of first instance in OS.No.241 of 1987 on the file of the Court of District Munsif, Amadalavalasa, Srikakulam district. The learned counsel would submit that such judgment cannot be a judgment in the eye of law and the same is contrary to Order-41, Rule 30 of the Code of Civil Procedure. The learned counsel also placed reliance on certain decisions. The learned counsel while further elaborating his submissions had also incidentally touched the merits and demerits of the matter and would contend that the well-considered judgment of the court of first instance was set aside by the appellate court ignoring several discrepancies, surrounding the agreement in question. 6. Smt.Lalitha, representing Sri D.Ramalingaswamy, the learned counsel representing the respondents had taken this court through the reasons, which had been recorded by the appellate court and would submit that in the light of the oral evidence of PWs.1 to 5 and Exs.A1 to A10 and taking into consideration the nature of the evidence of DWs.1 and 2 and Exs.Bl and B2 the appellate court came to the conclusion that the relief of specific performance to be granted, which was negatived by the court of first instance. Hence, the findings need not be disturbed. The counsel would also submit that the were non-hearing of the counsel representing the respondents in AS.No.52 of 1990 the appellants herein may not seriously alter the situation in the light of the convincing reasons recorded by the appellate court. 7. Perused the findings of the Court of first instance and also the appellate court. 8. The counsel would also submit that the were non-hearing of the counsel representing the respondents in AS.No.52 of 1990 the appellants herein may not seriously alter the situation in the light of the convincing reasons recorded by the appellate court. 7. Perused the findings of the Court of first instance and also the appellate court. 8. The facts in nutshell are as hereunder: One Budumuru Anandarao Naidu, the plaintiff in OS.No.241 of 1987 on the file of the Court of District Munsif, Amadalavalasa, originally instituted the suit in OS.NO.207 of 1982 on the file of District Munsif, Palakonda, praying for the relief of specific performance of an agreement of sale dated 6-5-1981 executed by the defendants 1 to 3, The avarmens in detail were made in the plaint and the first defendant filed written statement denying the same and on the strength of the respective pleadings of the parties, the following issues were settled: (1) Whether the suit agreement is true ? (2) Whether the plaintiff is entitled for specific performance of the suit agreement ? (3) To what relief ? 9. The plaintiff had examined himself as PW.1 and also PWs.2 to 5 were examined and Exs.A1 to A10 were marked. The first defendant had examined himself as DW.1 and another witness, DW.2 was also examined and Exs.B1 and B2 were marked. 10. The court of first instance after recording the reasons, pointing out certain discrepancies, came to the conclusion that the plaintiff is not entitled to the relief prayed for and dismissed the suit with further direction. Aggrieved by the same, the plaintiffs preferred AS.No.52 of 1990 on the file of the Court of Additional District Judge, Srikakulam. The first appellant, the plaintiff died and appellants 2 to 8 were added as legal representatives of the deceased first appellantplaintiff as per orders in IA.No.392 of 1993, dated 04-8-1993.The learned Additional District Judge, Srikakulam, at para no.8 framed the following points for consideration: 1) Whether Ex..A1 agreement is true ? 2) Whether the plaintiff is entitled for specific performance of the agreement or refund of the sale consideration ? 11. No doubt, the learned Judge recorded reasons commencing from paras 11. to 21 and ultimately allowed the appeal on 7-7-1997. ON 01-7-1997 the docket entry shows: “Heard the counsel for the appellants. 2) Whether the plaintiff is entitled for specific performance of the agreement or refund of the sale consideration ? 11. No doubt, the learned Judge recorded reasons commencing from paras 11. to 21 and ultimately allowed the appeal on 7-7-1997. ON 01-7-1997 the docket entry shows: “Heard the counsel for the appellants. Respondents advocate was said to have died, no representation, the respondents are called absent and set exparte, the judgment reserved” . 12. It is a case where the appellate court had reversed the decree and judgment made by the court of first instance. Hence, it is needless to say that the appellants defendants in the suit would be aggrieved of the same. It may also be mentioned that the first appellant in appeal died and appellants 4, 5 and 6 were brought on record as legal representatives as per orders of this court on 29-6-2000 in CMP.No.17.34 of 2000. There cannot be any doubt or controversy in the light of the above facts that no counsel was representing the respondents in AS.No.52 of 1990 at the relevant ‘point of time and the respondents were set exparte and a reversing judgment was made by the appellate court. 13. Order X LI, Rule 30 of Code of Civil Procedure reads: Judgment when and where pronounced. (1) The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders. (2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced. 14. The words “after hearing the parties or their pleader and referring to any part of the proceedings” in Order-41, Rule 30 (1) of the Code referred to supra, would assume some importance. 15. 14. The words “after hearing the parties or their pleader and referring to any part of the proceedings” in Order-41, Rule 30 (1) of the Code referred to supra, would assume some importance. 15. Reliance was placed on the decision of the Apex Court in THAKUR SUKHPAL SINGH Vs. THAKUR KALYAN SINGH AND ANR(1)., wherein it was held that the appellate court is not bound to decide an appeal on materials on record when the appellant appears at the hearing but does not address the court. It can dismiss the appeal for default. 16. A full Bench of Allahabad High Court in BABU RAM Vs. BHAGWAN DIN AND ANR (2) held that in the absence of appellant and his counsel, the court has jurisdiction to dispose of the appeal on merits. But this course to be used exceptional circumstances. 17. Strong reliance was placed on the decision of the Division Bench of this court in GOLLA KRISHNA MURTHY V/s. GOLLA YELLAIAH (died) Per his LRs (3).,wherein the Division Bench observed at para 3 and 5 as hereunder: 3. Now the question before us is as to whether the judgment delivered in an appeal, which was heard after the death of a party was a nullity, or not. The learned Single Judge of this Court in the judgment supra has taken a contrary view. While analyzing Order-22 of the Code of Civil Procedure, Justice P.A. Choudary was of the view that in a case in which arguments were heard when one of the parties was dead it would not be a nullity. Taking into consideration all the rules of Order-22 CPC the learned Judge came to the conclusion that a suit or an appeal does not abate till the time granted for bringing on record the legal representatives expires. Therefore, by legal fiction even after the death of a party the suit or appeal survives atleast till the time provided under law for bringing on record the legal representatives expires. With our profound respects to the views of the learned Judge, we are unable to agree with this reasoning. It is not a question as to whether an appeal survives after the death of a party, or not. The question is, whether the parties were represented at the time of arguments or hearing of the case. With our profound respects to the views of the learned Judge, we are unable to agree with this reasoning. It is not a question as to whether an appeal survives after the death of a party, or not. The question is, whether the parties were represented at the time of arguments or hearing of the case. If a party dies before the matter is finally heard and argued before the Court the advocate who appears for a dead party, is appearing, in fact, for nobody. By fiction of law the suit or appeal may be surviving even after the death of the party for a particular period of time, but the authority of the Advocate ceases immediately after the death of a party. In an adversial systern of litigation, it is the parties who have the right to put forth their case before the Courts and this right of the parties cannot be taken away by giving any interpretation to Order-22 to suit such a line of thinking. The framers of the Code of Civil Procedure have been conscious of this fact. Therefore by virtue of Rule 6, Order-22 it is laid down that a judgment can be delivered if a party dies after the hearing Rule-6 of Order-22 lays down : “Order 22, Rule 6 No abatement by reason of death after hearing Notwithstanding anything contained in the foregoing rules whether the cause of action survives or not, there shall be no abatement by reasons of the death of either party between the conclusion of the hearing and the pronouncing of the judgment but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place”. 5. As we have said herein above we are not able to agree with this reasoning. It is also not true that the appellate court is mainly confined to the examination of correctness of the judgment of the lower Court by reference to the law applicable and material already gathered. The fact of the matter is that the parties have a right to be heard and if parties are riot represented by reason of death of a party at the hearing the decree, in our view, becomes a nullity. The fact of the matter is that the parties have a right to be heard and if parties are riot represented by reason of death of a party at the hearing the decree, in our view, becomes a nullity. We are fortified in our view by a Division Bench judgment of Kerala High Court in Easwara lyer v/s. Vella Muthan 1998 (4) CCC 607 (Ker) (DB) and also in Kanaran V/s. Ramunni AIR 1961 Ker.290. In this judgment (3 supra) ‘Hearing’ as occurring in Order-22, Rule 6 was interpreted and it was held that, hearing does not mean hearing of arguments only, it refers to all the stages of the trial of a suit. In our view, the hearing includes all that is done by the Court before reserving the case for judgment. While interpreting Rule 6 of Order 22 CPC we are of the view that hearing would be complete when nothing more is to be done by the Judge except writing the judgment. 18. Here is a case where the respondents in AS.No.52 of 1990 were not represented by any counsel and the Court was conscious of the fact and had recorded the same and instead of ordering notice to those parties, set them ex-parte and made a judgment reversing the findings of the Court of first instance. In the light of the peculiar facts and circumstances of the case, this Court is of the considered opinion that the judgment made by the appellate court in these circumstances cannot be sustained and the same is vitiated for want of opportunity being given to the appellants, in the present second appeal. This court is not inclined to touch the other merits and demerits of the matter, which had been argued in elaboration by the counsel on record. 19. In view of the same, the decree and judgment of the appellate court are hereby set aside and the matter is remanded and the appellate court to give an opportunity of hearing both the parties and dispose of the appeal in accordance with law. The appeal is accordingly allowed to the extent indicated above. Since this court is making this order due to the mistake of the appellate court, the parties are directed to bear their own costs. The parties on record aredirected to appear before the appellate court, i.e., Additional District Court, Srikakulam, on 22-3-2007. --X--