JUDGMENT : DR. A.K. RATH, J. This is a defendants’ appeal against an affirming judgment in a suit for permanent injunction. 2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that respondent no.1 as plaintiff instituted O.S. No. 145 of 1985-I in the court of the learned Additional Munsif, Balasore seeking relief as mentioned supra. The defendants entered appearance and filed their written statement denying assertions made in the plaint. The suit was decreed. Defendant nos.1 & 2, present appellants, filed T.A. No. 68 of 89-I in the court of the learned District Judge, Balasore. During pendency of the appeal, plaintiff-respondent no.1 died. No application for substitution was filed. It was also not brought to the notice of the learned appellate court. The learned appellate court proceeded to decide the appeal on merit and dismissed the same. 3. The appeal was admitted on the following substantial questions of law:- “1. Whether the courts below committed error in holding that the plaintiff was entitled to protect his possession against Government who is the true owner of the property on the admitted position that the property was leased out to the plaintiff from year to year ? 2. Whether the courts below were correct in allowing the prayer for permanent injunction merely on the ground that there was no renewal of the annual lease and whether they committed an error in allowing the relief claimed by the plaintiffs ?” 4. Heard Mr. R.P. Mohapatra, learned Additional Government Advocate for the appellants, Mr. S.N. Sharma, learned counsel for the respondent nos.2 to 4 and none appears for the respondent no.1. 5. In course of hearing, Mr. Mohapatra, learned Additional Government Advocate submits that during pendency of the appeal before the learned District Judge, the plaintiff-respondent no.1 died on 28.11.1991 leaving behind his legal heirs. Though sole plaintiff died, but his right to sue survives. He further contends that the appellants filed Misc Case Nos. 24, 328 & 329 of 1994 for substitution, setting aside the abatement and condonation of delay respectively. 6. The question does arise as to when death of plaintiff-respondent no.1 has not occurred during pendency of the present second appeal, whether those applications should be sent to the lower appellate court for disposal on merits ? 7. 24, 328 & 329 of 1994 for substitution, setting aside the abatement and condonation of delay respectively. 6. The question does arise as to when death of plaintiff-respondent no.1 has not occurred during pendency of the present second appeal, whether those applications should be sent to the lower appellate court for disposal on merits ? 7. In Harish Chandra Habuda vs. Kanakamani Mohapatra & others, 1995 (II) OLR 157, defendant no.3 died during pendency of the appeal in the court of the learned District Judge. No substitution of his legal representatives was made. Learned appellate court having allowed the appeal, defendant no.1 filed second appeal before this Court. Applications for substitution, setting aside abatement and condonation of delay were filed before this Court. This Court set aside the judgment and decree passed by the learned District judge and remitted the matter to him with a direction to dispose of the applications according to law and to dispose of the appeal afresh. 8. The decree passed against a dead man is nullity. Admittedly, the plaintiff-respondent no.1 died during pendency of the first appeal. Accordingly the judgment and decree passed by the learned District Judge are set aside. The matter is remitted back to the learned appellate court to hear the applications for substitution, setting aside abatement and condonation of delay on merit and dispose of the appeal afresh. 9. Since the matter has been remitted back to the learned appellate court, this Court refrains itself from rendering a finding with regard to substantial questions of law. The appeal is allowed. There shall be no order as to costs.