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2014 DIGILAW 882 (CAL)

Gayaram Kopat v. Shyamal Kopat

2014-09-11

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. 1. The petitioner complains of the trial court requiring the petitioner to prefer a fresh title appeal upon it being discovered that one of the respondents had died prior to the appeal being filed. 2. The petitioner relies on a Division Bench judgment reported at AIR 1965 Cal 459 (State of West Bengal v. Manisha Maity) where the procedure to be adopted in such a case has been succinctly recorded. 3. The order impugned was a result of the erroneous application made by the petitioner before the appellate court. 4. It cannot be doubted that if a party dies during the pendency of the proceedings, such party may be substituted by his heirs, subject to the cause of action surviving. However, if proceedings are instituted against a dead party, they are incurably bad. In the present case, the title appeal was perfectly in order against the other parties thereto, but no appeal could be regarded to have been filed against the respondent no.10 named therein since such respondent had died prior to the appeal being filed. 5. The remedy of an appellant in such a case is to seek to prefer a fresh appeal against the heirs of the deceased respondent. If such application is made within the period of limitation for the appeal, no further difficulty arises. If the application is made after the expiry of the period of limitation, Section 5 of the Limitation Act, 1963 would apply thereto. That does not imply that there would be two sets of appeal by the same appellant against the same decree. What it implies is that an application may be made for preferring the appeal against the heirs of the deceased respondent with a prayer for condonation of the delay, whereupon the filing of the appeal against heirs of the deceased respondent would be deemed to be as at the day the application is lodged in Court, if the delay is condoned. It would not amount to any separate appeal being filed, but only that the appeal against the heirs of the deceased respondent being deemed to have been filed subsequent to the appeal originally being lodged. 6. The distinction has legal connotations which need not be discussed herein. 7. It would not amount to any separate appeal being filed, but only that the appeal against the heirs of the deceased respondent being deemed to have been filed subsequent to the appeal originally being lodged. 6. The distinction has legal connotations which need not be discussed herein. 7. Since it is evident that substantial prejudice will be suffered by the petitioner if the petitioner is required to file a fresh appeal and pay another set of court fees thereon, CO No.1190 of 2014 is disposed of by permitting the petitioner herein to carry an application in accordance with the procedure indicated in the judgment reported at AIR 1965 Cal 459 . If such application, with a prayer for condonation of the delay, is made by the petitioner before the appellate court within a fortnight from date, the appellate court is requested to consider the same in accordance with law, notwithstanding the order impugned dated April 4, 2014. 8. There will be no order as to costs. 9. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities. Revisional application is disposed of accordingly.