JUDGMENT : 1. This writ petition is under Article 227 of the Constitution of India whereby and whereunder the order dated 01.10.2015 passed in Title Appeal No. 81 of 2012 (Annexure-4) has been assailed by which the petition filed under Order I Rule 10(2) of Code of Civil Procedure by the respondents/proposed legal heirs of the plaintiff dated 22.06.2013 has been allowed. 2. The background of the case is that the respondent/plaintiff namely, Jitani Devi has filed a title suit being Title Suit No. 132 of 1996 for declaration of her title over 40 acres of land in Plot No. 564, Khata No. 230, Mouza-Sabalpur, District-Giridih but after filing of the said suit, the plaintiff, namely, Jitani Devi had died on 10.05.2002 without her examination in the said title suit but the fact about the death of the said Jitani Devi has not been brought to the notice of the court and the trial was allowed to be proceeded, ultimately, judgment was passed on 20.09.2012 i.e. after about 10 years of her death, without substituting her legal heirs as parties. 3. The petitioners have preferred an appeal against the judgment and decree passed in Title Suit no. 132 of 1996 dated 20.09.2012 against the sole plaintiff, namely, Jitani Devi, and in course of pendency of the appeal, the legal heirs, respondent herein, filed a petition on 22.06.2013 under Order I Rule 10(2) of the CPC for substitution of the legal heirs of Jitani Devi which has been objected by the judgment debtors, petitioners herein, on the ground that the sole plaintiff, namely, Jitani Devi had already died on 10.05.2002 and as such, in absence of substitution of the sole plaintiff through her legal heirs in the suit ultimately led to abatement and the suit ought to have been dismissed but the suit has been allowed to be proceeded and therefore, the judgment and decree passed in the aforesaid suit is nothing but nullity in the eye of law but the trial court has allowed the petition dated 22.06.2013 with a direction to implead the name of legal heirs of Jitani Devi as mentioned in the petition as respondents, against the said order the present writ petition has been filed. 4. This Court after hearing the petitioners on 14th June, 2019 issued notice to the respondents, in pursuance thereto, appearance has been made by the respondents through their counsel, namely, Mr. 4. This Court after hearing the petitioners on 14th June, 2019 issued notice to the respondents, in pursuance thereto, appearance has been made by the respondents through their counsel, namely, Mr. Prabhash Kr. Sinha, who has submitted that since the judgment/ decree has already been passed and the same has been challenged by the petitioners before the appellate court and as such they being the necessary parties by virtue of legal heirs of the sole plaintiff, namely, Jitani Devi, which prompted the legal heirs, respondents herein, to file petition under Order I Rule 10(2) of the CPC and the trial court after taking into consideration the implication of the aforesaid provision, has allowed the same and as such the same is having no illegality. 5. This Court after having heard the learned counsel for the parties and after going across the pleading made in the writ petition, deem it fit and proper to discuss about certain provisions of law which are relevant for its consideration in the facts and circumstances of the instant case. Order XXII contains a provision to deal with in respect of cases of death, marriage and insolvency of parties. Rule 1, provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. The right to sue accruing in Order XXII in the CPC means the right to bring a suit asserting a right to the same relief which the deceased person asserted at the time of his death. The death of a plaintiff of defendant would not cause abatement of the suit if the right to sue survives. Rule 2 thereof, provides the procedure where one of several plaintiffs or defendants dies and right to sue survives. The aforesaid provision provides that where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. It is also settled that in a case under Rule 2 no application for substitution is necessary i.e. when the legal representative is already on record and the right to sue survives to the remaining plaintiff or against the surviving defendant. Rule 3, provides the procedure in case of death of one of several plaintiffs or of sole plaintiff, which reads herein-under as: “3. Procedure in case of death of one of several plaintiffs or of sole plaintiff - (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.” It is evident from sub-rule (1) as contained under Rule 3 thereof, that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit whereas sub-rule (2) provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. It has been held by Hon’ble Apex Court in the case of P. Chandrashekharan and Others vs. S. Kanakarajan and Others, (2007) 5 SCC 669 wherein it has been held that an appeal abates automatically unless the legal heirs or representatives of the deceased plaintiff or defendant are brought on record within period specified in the CPC. Rule 4, provides procedure in case of death of one of several defendants or of sole defendant. This Court is not referring the provision of Rule 4 since the case pertains to death of sole plaintiff, therefore, the implication of the provision of Rule 3 of Order XXII is having its implication. 6. Order I Rule 10(2) also needs to be referred herein since under the aforesaid provision, the legal heirs of the sole plaintiff, who are the respondents herein, have filed a petition before the trial court which is the subject matter of the instant writ petition, the said provision reads hereunder as: “10(2) Court may strike out or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.” It is evident from the aforesaid provision that the Court may at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 7. 7. The issue of Order XXII was the subject matter before the Hon’ble Apex Court in the case of Gangadhar and Another vs. Shri Raj Kumar, AIR 1983 SC 1202 wherein it has been laid down that Rule 10-A which has been added in Order XXII of the CPC by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know about the death of the party, he shall inform the court about it and the court thereafter shall issue notice to the other party. In the case of an appeal, the word "suit has to be read as "appeal." This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end one cannot expect the other party to be a watch dog for day to day survival of the other party. When the appeal on being notified for hearing is activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovative provision has been introduced, whereby, a duty is cast upon the learned Advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death of the party represented by the learned Counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client. In the case of P. Jesaya vs. Sub-Collector, 2004 (13) SCC 431 it has been laid down that it is obligatory on the pleader of a deceased to inform the court and the other side about the factum of death of a party. In the case of P. Jesaya vs. Sub-Collector, 2004 (13) SCC 431 it has been laid down that it is obligatory on the pleader of a deceased to inform the court and the other side about the factum of death of a party. The Hon’ble Madras High Court while dealing with a case of C. Manoharan vs. C.V. Subramaniam and Others, 2006 (4) MLJ 898 it has been laid down therein by taking into consideration the judgment rendered by Hon’ble Apex Court in the case of P. Jesaya vs. Sub-Collector (supra) that the decree passed against the death person cannot be treated as nullity rather it can be construed as nullity. Yet in another case, the Hon’ble Madras High Court has been pleased to hold as reported in AIR 1983 Mad 5 in the case of Abdul Azeez Sahib vs. Chanabagiammal and Others that a decree passed in favour of a death person is not a nullity, and the fact of death not brought to the notice of the Court when it passed the decree is only an irregularity and it cannot have the effect of making of making the decree void abinitio and the decree is executable. Where the Court proceeds with the case in ignorance of the fact of death of person and passes a decree, that decree cannot be treated as a nullity. It may no doubt, be a wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a death person is not a nullity, though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would make the decree passed in the suit as one without jurisdiction and executing Court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour. Even if there is abatement of the suit, that would make the decree passed in the suit as one without jurisdiction and executing Court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour. Thus, it is evident by going across the judgment rendered by Hon’ble Madras High Court as referred hereinabove which has been taken note by Hon’ble Rajasthan High Court in the case of Jarnail Singh and Others vs. Saudagar Singh, wherein it has been held as: “Where the Court proceeds with the case in ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity. It may no doubt be a Wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a dead person is not a nullity though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would not make the decree passed in the suit as one without jurisdiction and the executing court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour.” The similar issue has also been considered in the judgment in the case of Lachmi Narain Marwari vs. Balmakund Marwari, 1924 AIR (PC) 198 wherein it has been held that after decree has been made, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside. 8. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside. 8. The fact in hand in this case is that admittedly the sole plaintiff, namely, Jitani Devi died on 10.05.2002, suit has been allowed to be proceeded and no such application has been filed on behalf of the legal heirs of the sole plaintiff approximately for a period of more than ten years and allowed the judgment and decree to be passed by the trial court which was passed on 20.09.2012 and when the appeal has been filed against the aforesaid judgment at this stage, the respondents have filed a petition under Order I Rule 10(2) of the CPC which has been allowed by the trial court. 9. The question herein that the information about the death of the defendant is to be furnished by the counsel for the defendant enabling the plaintiff to file substitution petition for substitution of the legal heirs of the defendant but it is a case where the plaintiff herself has died, therefore, there is no requirement to furnish any information to the counsel who was representing the sole plaintiff, namely, Jitani Devi and admittedly the substitution petition has not been filed by the legal heirs of the sole plaintiff and the judgment/decree has been allowed to be passed and subsequent to filing of the appeal, a petition under Order I Rule 10(2) of CPC has been filed by the legal heirs of the sole plaintiff, namely, Jitani Devi, which has been allowed. 10. Even in spite of serious objection having been made by the judgment debtors, petitioners herein, raising these issues by filing rejoinder, the appellate court has not considered the aforesaid aspect of the matter by taking the ground that the defendants/ judgment debtors were also having no knowledge about the death of the sole plaintiff. 11. The question herein is that what would be the consequence in case of death of the sole plaintiff immediately after filing of the suit and no steps have been take by his legal heirs to bring themselves on record within the period of limitation prescribed i.e. within 90 days from the date of death. The consequence would be as per the provision provided under sub-rule (2) of Rule 3 of Order XXII. The consequence would be as per the provision provided under sub-rule (2) of Rule 3 of Order XXII. The provision contained therein provides that where within the time limited by law no application is made under sub-rule (1), the suit will abate, this aspect of the matter has been considered by Hon’ble Apex Court in the case of Union of India vs. Ram Charan, AIR 1964 SC 215 wherein it has been observed as: “The procedure, requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the plaintiff as by the abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other consideration.......” 12. If the suit is in the nature of declaratory suit, different parameter would be there in comparison to that of the partition suit because in a partition suit, after the death of the sole plaintiff the defendant can make an application for transposing himself as a plaintiff under Order I Rule 10(2) of CPC since the very intendment and purpose of Order I rule 10(2) of CPC is to add parties necessary or proper, to enable the Court to effectually and completely adjudicate all the questions that are involved in a case. The use of the words "at any stage of the proceedings" in sub-rule(2) of Rule 10 in Order I manifests that the power vested in the Court under that provision can be exercised only when the proceedings before it are alive and still pending. In other words, the application or Order I Rule 10(2) should be confined only to cases where any proceedings are pending before the Court. In other words, the application or Order I Rule 10(2) should be confined only to cases where any proceedings are pending before the Court. The very purpose and object of this provision being to make any party a defendant or respondent, or plaintiff or appellant in a proceeding, in order to enable the Court to make an effective and complete adjudication of the questions involved in the case, when once the adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party. 13. The fact of this case is that the plaintiff has died immediately after filing of the suit but the said fact has not been brought to the notice of the Court in consequence thereof, the judgment/decree has been passed by the trial Court which has been challenged by the judgment debtor before the appellate forum and at that juncture, a petition has been filed by the legal heirs of the deceased sole plaintiff under Order I Rule 10(2) of CPC which has been allowed by vide impugned order. 14. It would be evident as has been discussed hereinabove that after the death of the plaintiff or the defendant, as the case may be, the suit will abate as legal consequence flowing from the omission to take necessary steps within the time limited by law to implead the legal representatives of the deceased plaintiff and a formal order of the court is not necessary for such consequence to happen. 15. Admittedly herein, the sole plaintiff has died after filing of the suit and the suit has proceeded and ultimately resulted into judgment passed in favour of the plaintiff (deceased), the suit has not abated as legal consequence of the death since the information about the death of the plaintiff has not been furnished by the defendants or by the legal representatives of the sole plaintiff have not come forward for substitution as legal heirs of the deceased plaintiff. 16. Now, the question herein is that the judgment/decree has been passed which is the subject matter of the appeal wherein a petition under Order I Rule 10(2) has been filed which has been allowed by the trial court impleading the legal heirs of the deceased sole plaintiff. 17. 16. Now, the question herein is that the judgment/decree has been passed which is the subject matter of the appeal wherein a petition under Order I Rule 10(2) has been filed which has been allowed by the trial court impleading the legal heirs of the deceased sole plaintiff. 17. As has been discussed hereinabove in detail that after the death of the sole plaintiff if the judgment has been passed in favour of a death person, is not a nullity but a decree passed against a death person can be construed as nullity as has been held by Hon’ble Madras High Court in the judgment rendered in the case of Abdul Azeez Sahib vs. Chanabagiammal and Others (supra), therefore, the same has to be set aside by taking appropriate proceeding like appeal, revision or review and when the appeal has been filed against the aforesaid judgment/decree then the question would be that whether the legal representative of the sole plaintiff (deceased) can be said to be a party for their impleadment, as would appear from the provision of Order I Rule 10(2) of CPC that the same can be invoked only to cases where any proceedings are pending before the court. Admittedly, a proceeding by way of an appeal against the decree passed in favour of the sole plaintiff (deceased) is the subject matter and so long as it is not in existence either under appeal or review it will operate its field and hence, if the respondent would not be allowed to be impleaded as party and in their absence, if any judgment would be passed by the appellate court by reversing the judgment/decree passed in the title suit, the same will cause serious prejudice to the interest of the respondents, therefore, this Court is of the view by taking into consideration the implication of the provision of Order I Rule 10(2) of CPC that since the appeal against the judgment/decree passed in the Title Suit No. 132 of 1996 is pending for consideration by the appellate court which will be treated to be continuation of the proceeding of the trial court and as such in course of pendency of the appeal, if a petition has been filed by the legal representatives of the sole plaintiff and if it has been allowed by the trial court, it cannot be said to be an error rather if it would not be allowed the respondents will be subjected to prejudice. 18. In view thereof and taking into consideration the entirety of facts and circumstances as discussed hereinabove, this Court is of the view that the order impugned does not warrant any interference by this Court in exercise of power conferred to this Court under Article 227 of the Constitution of India. 19. Accordingly, the writ petition fails and stands dismissed with an observation that the appellate court shall decide the appeal in accordance with law and without being prejudiced by this order.