ORDER : The question fell for consideration in this application is whether it is mandatory to seek leave of a Court to file an appeal by a legal representative of a deceased person who is a party to any proceeding be it a suit or an appeal. This application under Section 151 CPC is filed to grant leave to file an appeal against the decree and judgment, dated 13.12.2021, passed in O.S.No.69 of 2006 on the file of the Court of VI Additional District Judge, Visakhapatnam, as legal representatives of the deceased 1st defendant. 2. Heard Sri M. Radhakrishna, learned counsel appearing for the petitioners/appellants. 3. The petitioners 2 to 4 are allegedly the wife and sons of late Ch. Vara Sankara Prasad, who is the 1st defendant in O.S.No.69 of 2006. The suit was filed by the plaintiffs for declaration of their ownership over the plaint schedule property and for eviction of the defendants etc., from the plaint schedule property and also for consequential permanent injunction etc. The 1st defendant contested the suit pleading title in himself. The 1st defendant died on 22.05.2021 pending the suit. The suit was heard on 01.12.2021 and the judgment in the suit was pronounced on 13.12.2021. It seems the death of the 1st defendant was reported to the trial Court, vide memo G.R. No.920 of 2021, dated 05.07.2021 along with particulars of the legal representatives. 4. As per Order XXII Rule 6 CPC, there shall be no abatement by reason of death of either party between the conclusion of the hearing and the pronouncing of the judgment and the judgment so pronounced without impleading the legal representatives shall have the same force and effect as if it had been pronounced before the death took place. 5. However, in the present case, Order XXII Rule 6 CPC cannot be applied to save the validity of the judgement passed in the suit, since the death of the 1st defendant occurred prior to hearing and was also brought to the notice of the Court concerned. The defendants 2 to 4 are the builders and they have not contested the suit. It is only defendants 1 & 5 who filed their written statements. The defendants 2 to 4 are the builders and they have not contested the suit. It is only defendants 1 & 5 who filed their written statements. The petitioners 2 to 4 contend that on the death of the 1st defendant, the right to prosecute the suit survived against the estate, and therefore, they are necessary to be brought on record as legal representatives of the deceased 1st defendant. Since the trail Court granted the decree in favour of the plaintiff, the petitioners contend that they need to challenge the decree & judgement in appeal as the legal representatives of the deceased 1st defendant. Since they are not the original parties in the suit, they filed this petition seeking leave to file the appeal. 6. However, learned counsel submitted that it is not required to file a separate application seeking leave of the appellate Court to file an appeal by the legal representatives of a deceased party and in this regard, he submitted that neither Section 96 CPC which speaks about filing of the first appeal nor Section 100 CPC which speaks of filing a second appeal providesthe persons who shall file the appeal. But, Section 146 CPC provides that save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. Therefore, he argued that since filing of an appeal under Section 96 CPC is a matter of right of any party to the suit, reading Section 96 CPC and 146 CPC together, the legal representatives, being persons claiming under the deceased party to the suit, can file appeal without seeking any leave of the Court. To fortify his contention, he further submitted that as held by the Court of Chancery Division vide In re Securities Insurance Company, (1894) 2 CH 410, it is settled practice that a person who is a party can appeal without any leave, whereas any person who is bound by or aggrieved by the order or judgment is entitled to file an appeal with leave of the Court. He further submitted that the observations of Lindley, L.J. in Securities Insurance Company (1 supra) were followed by the Supreme Court in several decisions such as State of Punjab and others v. Amar Singh and another, (1974) 2 SCC 70 , which has been cited by the Full Bench of the Supreme Court in the decision in Sri V.N. Krishna Murthy and another v. Sri Ravi Kumar and others, Civil Appeal Nos.2701-2704 of 2020, dated 21.08.2020. He further placed reliance on the decision of the High Court of Madras in S.V. Sitaramaswamy v. Dulla Lakshmi Narasamma, (1917) I.L.R 41 Mad. 510 and also the decision of the Bombay High Court in The Province of Bombay v. Western India Automobile Association, AIR 1949 Bombay 141 and another decision of the Madras High Court in The Indian Bank and The Official Receiver of Madura v. Seth Bansiram Jashamal Firm, through its managing partner, Lilaram and another, (1934) 0 AIR (Mad) 360. 7. Before proceeding further, it is apropos to refer the relevant provisions of the Civil Procedure Code and they read as follows : Section 96 CPC: “96. Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.” Section 100 CPC: “100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex-parte. (2) An appeal may lie under this section from an appellate decree passed ex-parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” Section 146 CPC: “146. Proceedings by or against representatives.- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.” A reading of Section 146 CPC makes it clear that the legal representatives of a deceased party stand on the same footing as that of a party to the suit insofar as their right to take any proceeding or make an application and it does not require for them any special or separate permission. 8. Now, turning to the ratio in the decisions cited by the learned counsel for the petitioners, the same is as shown herein below : (i) In In re Securities Insurance Company (1 supra), it was held as follows: “Now, what was the practice of the Court of Chancery before 1862, and what has it been since? I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is entitled to appeal.” Lord Justice Lopes and Lord Justice Kay have concurred with the view of Lord Justice Lindley.” The aforesaid decision was also referred in The Province of Bombay v. Western India Automobile Association (supra). (ii) In Sri V.N. Krishna Murthy (3rd supra), it was held in paragraphs 15 & 16 as follows : “15. Section 96 and 100 of the Code of Civil Procedure provide for preferring an appeal from any original decree or from decree in appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. However, it is a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls with the category of aggrieved persons. It is only where a judgment and decree prejudicially affects a person who is not party to the proceedings, he can prefer an appeal with the leave of the Appellate Court. Reference be made to the observation of this Court in Smt. Jatan Kumar Golcha v. Golcha Properties Private Ltd. [ (1970) 3 SCC 573 ]: It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the Judgment. 16. 16. This Court in State of Punjab and others v. Amar Singh and another [ (1974) 2 SCC 70 ] while dealing with the maintainability of appeal by a person who is not party to a suit has observed thus: ‘Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co., [(1894) 2 Ch 410] have laid down the Rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.’ (iii) In S.V. Sitaramaswamy (4th supra), it was held as follows: “1….Thereupon the present appellant filed an application to the District Court under Order XXII, Rule 10, for an order that he be allowed to prefer an appeal, as the right to the property in suit devolved on him pending the suit. At the same time, he filed a memorandum of appeal against, the decree of the Subordinate Judge. On the application, the District Judge held that Order XXII, Rule 10, was not applicable and dismissed it. On the appeal, he held that his order on the application concluded the right of the appellant. Against these two decisions a civil miscellaneous appeal and a” second appeal have respectively been preferred.” “2……...Order XXII, Rule 10, only governs applications made to continue a suit. Consequently the application presented after the termination of the suit was not within the rule. …..” “3. The District Judge is clearly wrong in holding that the appeal failed by reason of his rejection of the application. Apparently his attention was not drawn to the provisions of Section 146 of the new Code of Civil Procedure. It is rather anomalous that if the person claiming under a party applied to continue the suit while it was pending, the Court had a discretion to permit him to do so or to refuse his application; the effect of Section 146 is to grant such a person an undeniable right to prefer the appeal which his assignor could have preferred. But the language of the section is clear and we are not at liberty to go behind its plain terms. But the language of the section is clear and we are not at liberty to go behind its plain terms. The proceeding contemplated by the section would include an appeal and the expression ‘claiming under’ is wide enough to cover oases of devolution, etc., mentioned in Order XXII, Rule 10. We, therefore, hold that the appellant was entitled to prefer the appeal to the District Judge. That appeal must now be heard on the merits. We reverse the decree of the District Judge and remand the appeal to him for disposal.” (iv) In The Province of Bombay v. Western India Automobile Association (5 supra), it was held as follows : “3…… The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. But it is clear, and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trail Court, provided he obtains leave from the Court of Appeal. Therefore, whereas in the case of a party to a suit he has a right of appeal, in the case of a person, not a party to the suit who is affected by the order he has no right, but the Court of Appeal may in its discretion allow him to prefer an appeal………” “15. When Appeal No. 81 of 1948 was called on before us counsel for the respondent took a preliminary objection that the Province of Bombay not having been a party to the petition it was not competent to the Province of Bombay to file the appeal. It was contended that it was only the parties to the proceedings before the lower Court that had a right of appeal and those persons who were not parties to the proceedings were not competent to file any appeal even though the judgment and the decree appealed from might adversely affect their interests. Our attention was directed to the relevant provisions of the Civil Procedure Code, namely, Sections 96 and 146 and Order XLI, Rule 1, of the Civil Procedure Code. Our attention was directed to the relevant provisions of the Civil Procedure Code, namely, Sections 96 and 146 and Order XLI, Rule 1, of the Civil Procedure Code. It may be noted however that in none of these provisions of the Civil Procedure Code has it been laid down who can prefer an appeal It was further pointed out that in the commentary of Sir Dinshah Mulla on the Civil Procedure Code and also in a judgment of Mr. Justice Madhavan Nair in Indian Bank Ltd. v. Seth Bansiram Jeshamal Firm I.L.R. [1933] Mad. 670 it was stated that no person who is not a party to the suit or proceedings has a right of appeal. This is no doubt the position so far as the right of appeal is concerned. A person who is not a party to the suit or proceedings has no right to appeal against the decision and this is the position where a person who is not such party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the appellate Court before he can be allowed to file an appeal. There is no right of appeal vested in him by any of the provisions of the Civil Procedure Code or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the Court, is to approach the Appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases. This is the position in England as one finds it laid down in In re Securities Insurance Company [1894] 2 Ch. 410 where Lindley L.J. observed (p. 413): Now, what was the practice of the Court of Chancery before 1862, and what has it been since? I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal. The Province of Bombay had not obtained any such leave to appeal and had filed the appeal as if in exercise of a right to do so. This position was certainly not tenable and under the circumstances of the case we thought it proper to give the Province of Bombay leave to appeal but on terms that the Province of Bombay do pay all the costs up to the time when the leave to appeal was granted by us. This disposed of the preliminary objection which was taken by counsel for the respondent and appeal No. 31 of 1948 proceeded for hearing.” (v) In The Indian Bank and The Official Receiver of Madura (6 supra), it was held in paragraph Nos. 14 to 16 as follows: “14. The present appeal not being one under the Insolvency Act, the decision in Chowdappa Gounder v. Kathaperumal Pillai I.L.R. (1926) Mad. 794 : AIR 1926 Mad 801 is obviously inapplicable. So also is the decision in Ananthanarayana Ayyar v. Sankaranarayana Ayyar I.L.R. (1923) Mad. 673 referred to in Chowdappa Gounder v. Kathaperumal Pillai I.L.R. (1926) Mad. 794 : AIR 1926 Mad 801. The question whether the appellant though not a party to the suit can prefer an appeal against the decree on the ground that the Official Receiver who was a party to the suit representing the general body of creditors has not appealed, and that he, the appellant, as one of the creditors represented by the Official Receiver is aggrieved by the decree, must be answered with reference to the provisions of the Civil Procedure Code under which the appeal has been filed or the general principles of law. The relevant provisions of the Code are Section 96, Order 41 and Section 146. Clause (1) of Section 96, the section under which appeals are filed, says: ...an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. 15. None of the three clauses of the section says who may prefer the appeal. Clause (1) of Section 96, the section under which appeals are filed, says: ...an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. 15. None of the three clauses of the section says who may prefer the appeal. Order 41, Rule 1 refers to the form in which every appeal should be preferred, what should accompany the memorandum and the contents of the memorandum. This provision also does not state who may prefer the appeal. Section 146 refers to proceedings by or against representatives. It says: … where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. 16. Under this section, if a person who is entitled to prefer an appeal is dead, his legal representative may prefer the appeal. The proceeding contemplated by this section would include an appeal and the expression ‘claiming under’ is wide enough to cover cases of devolution etc. mentioned in Order 22, Rule 10. See Sitaratnaswami v. Lakshmi Narasimha I.L.R. (1917) Mad. 510. It is not argued that the appellant in this appeal claims under the Official Receiver. In his commentaries under Section 96, Civil Procedure Code, under the heading “Who may appeal,” Sir Dinshah Mulla says: An appeal under this section may be preferred by any of the following persons: 1. Any party to the suit adversely affected by the decree, or, if such party is dead, by his legal representative. 2. Any transferee of the interest of such party, who, so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit. 3. An auction-purchaser may appeal from an order in execution setting aside the sale on the ground of fraud. No person, unless he is a party to the suit, is entitled to appeal under this section.” 9. A perusal of the ratios in the above decisions makes it abundantly clear that a person who is a party can appeal without any leave, but a person who is not a party but bound or aggrieved by an order/judgment/decree, can prefer appeal only with the leave of the Court. A perusal of the ratios in the above decisions makes it abundantly clear that a person who is a party can appeal without any leave, but a person who is not a party but bound or aggrieved by an order/judgment/decree, can prefer appeal only with the leave of the Court. Reading this settled principle in conjunction with Section 146 CPC, it can be said that a legal representative of a party can file an appeal and such party cannot be categorized under clause ‘a person who is aggrieved or bound the order/ judgement/decree’. 10. The phrase ‘a person who is aggrieved’ has been discussed in a catena of decisions, some of which are referred by the Supreme Court in the decision in Sri V.N. Krishna Murthy (supra) at paragraph Nos.17 to 20 as follows : 17. In Baldev Singh v. Surinder Mohan Sharma and others [ (2003) 1 SCC 34 ], this Court held that an appeal Under Section 96 of the Code of Civil Procedure, would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgement and decree. While dealing with the concept of person aggrieved, it was observed in paragraph 15 as under: ‘A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned.’ 18. In A. Subash Babu v. State of A.P. and another [2010 (2) ALT (Crl.) 56 = (2011) 7 SCC 616 ], this Court held as under: ‘The expression ‘aggrieved person’ denotes an elastic and an elusive concept. It cannot be confined that the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant’s interest and the nature and extent of the prejudice or injuries suffered by him.’ 19. The expression ‘person aggrieved’ does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji v. Home Insurance Co. The expression ‘person aggrieved’ does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji v. Home Insurance Co. of New York, [ (1974) 2 SCC 387 ] and State of Rajasthan and others v. Union of India and others [ (1977) 3 SCC 592 )]. 20. In Srimathi K. Ponnalagu Ammani v. The State of Madras represented by the Secretary to the Revenue Department, Madras and others, [66 Law Weekly 136], this Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in following words: ‘Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgement in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.’ 11. The term ‘a person aggrieved’ used in Section 96 CPC cannot be equated with a person who is not a party to a proceeding because Section 146 CPC keep both a person who is a party to a proceeding and his/her legal representatives on par. It is only a person who is totally a third party to a proceeding, not stepping into the shoes of any party to a proceeding, requires leave of a Court to appeal on the ground that he/she is aggrieved or bound by the order/decree/judgment challenged in the appeal. Therefore, this Court is of the view that no separate application seeking leave of a Court is required to prefer appeal, be it under Section 96 CPC or under Section 100 CPC. Therefore, this Court is of the view that no separate application seeking leave of a Court is required to prefer appeal, be it under Section 96 CPC or under Section 100 CPC. However, while preferring the appeal, the legal representatives must prima facie establish all the necessary elements which are considered to implead any person as a legal representative of a deceased party, such as, (i) the death of the party into whose shoes they step in and (ii) their relationship to the deceased to examine whether they are really the legal representatives of the deceased: and, (iii) they must also take a plea as to how the cause of action survives after the death of the deceased and how they have interest in the lis to carry it forward. These things enable a legal representative to take forward the matter like a party to a proceeding. 12. As such, since an application is already filed in the present case and the petitioners 2 to 4 have already prima facie established the death of the defendant No.1 by filing a copy of the death certificate and copy of the family member certificate to show their relationship to the deceased and have pleaded how the cause of action survives and the interest they have in the lis, it is a fit matter to grant leave to the petitioners to prefer the appeal. 13. Before concluding, this Court records its appreciation for the assistance rendered by the learned counsel for the petitioners on the question involved in this interlocutory application. 14. In the result, the petition is allowed and leave, as prayed for, is granted.