1. In this case four plaintiffs, Raj Bahadur, Musammat Mohni, Musammat Lachha Kunwar, and Hem Kunwar, sued the defendants to recover possession of certain property to which they claimed to be jointly entitled. The Court of First Instance gave the plaintiffs a decree from which the defendants appealed, making all four plaintiffs respondents.
2. Before the appeal came on for hearing, the appellants alleged that Musammat Mohni and Musammat Lachha Kunwar were dead, and upon their application Hem Kunwar was added a respondent, as the legal representative of the two respondents said to have died. When the appeal came on for hearing, Hem Kunwar satisfied the Court that Musammat Mohni was alive, and that he was not the legal representative of Musammat Lachha; and further, that the application to place him as their representative on the record was made more than 6 months after the death of the latter. No notice of the appeal had been served on Musammat Mohni, and upon that ground the Lower Appellate Court held that as against her the appeal could not proceed. With regard to Musammat Lachha,he set aside the order, which was an ex-parte order by which Hem Kunwar had wrongly been placed on the record as legal representative of Musammat Lachha, and went on to say: 'The result is that under Section 368 read with Section 582 of the Code of Civil Procedure, the appellants' appeal as against Lachha Kunwar, the deceased respondent, will fail.' Thereupon, in the same judgment, he proceeded to deal with the appeal on the merits, and in the result made the following decree, namely, 'that the appeal of the defendants-appellants be decreed as against the plaintiffs-respondents, Raj Bahadur and Hem Kunwar only, and the Munsif's decree so far as it concerns them be set aside, and in place thereof it is decreed that the claim of the plaintiffs-respondents, Raj Bahadur and Hem Kunwar, be dismissed with costs, that the appeal of the defendants-appellants be dismissed with costs as against the plaintiffs-respondents Nos. 2 and 3 (i.e., Musammat Mohni and Musammat Lachha Kunwar), and the Munsif's decree so far as it concerns them be upheld as it is.' There was a further order as to costs which is immaterial in this case.
3. Against the decree of the Lower Appellate Court, Raj Bahadur and Hem Kunwar appealed on the following grounds, namey--(1) because the appeal should have abated as the representatives of the deceased respondent Lachha Kunwar were not brought upon the record within the period of six months allowed by the Statute, (2) because the trial of the appeal was contrary to the express provisions of Section 368 of the Code of Civil Procedure. A preliminary objection was taken that these grounds were not directed against the decree of the Lower Appellate Court, and that the appeal was really an appeal against an order of the Lower Appellate Court under Section 368, in effect, if not in terms, directing that the appeal should abate so far as Musammat Lachha Kunwar was concerned and not against the decree, I think there is no ground for this objection. The appeal, in my opinion, was against the decree. There was no separate judgment upon the matter of the death of one of the respondents who died. That matter and the merits of the appeal were dealt with in the same judgment, and the finding of the Court as to both was embodied in the decree. In substance the appellants before the Court impugned the decree on the ground that the trial of the appeal upon the merits was contrary to the provisions of Section 368 read with Section 582 of the Code of Civil Procedure, and that the decree made was therefore bad.
4. I think Section 591 of the Code applies to this case. The decree of the lower Court was appealed against. This Court was asked to set aside the decree of the Lower Appellate Court on the ground that the trial on the merits was contrary to law; but even if the order that, by reason of the death of Lachha Kunwar, the appeal against her failed, be treated as an order in the suit separate from the findings upon which the decree is based (which I do not think it is), then there is an objection which is taken and set forth as in the memorandum of appeal, that the appeal to the Lower Appellate Court ought to have abated altogether and not partially.
5. My attention has been drawn to the following cases: Sheo Nath Singh v. Ram Din Singh (1895) I.L.R. 18 All. 19; Sher Singh v. Diwan Singh Weekly Notes 1900 p. 109; Dhari Upadhia v. Raushan Chaudhri Weekly Notes 1899 p. 136; and to a Full Bench decision referred to in the first of these cases; but in the view I take of the present case I do not think that any of these cases apply, as I consider that in the present case there is an appeal directed against the decree of the Lower Appellate Court. Here no application was made within the time limited to place the legal representatives of Lachha Kunwar, the deceased respondent, on the record. The appeal was one where the right to appeal did not survive against the surviving respondents, but against them and the representatives of the respondent who had died, and under these circumstances, Section 368 read with Section 582 of the Code applied, and the proper order was to have directed the suit to abate.
6. In any case, in my opinion, there is no substance in the preliminary objection. Under the Rules of the Court (Rule 9) every memorandum of appeal must be headed 'First Appeal,' or 'Second Appeal,' as the case may be, and it was contended that this appeal, though headed 'Second Appeal' as being an appeal from the decree of the Lower Appellate Court, dated the 26th September 1899, was in reality a first appeal from an order made on the same date and embodied in the decree. I see no reason why, if that contention were right, the memorandum of appeal should not be amended. The mis-description was not one which could have taken the respondents by surprise, or otherwise prejudiced them. The stamp on the appeal, as a second appeal, is more than that required in an appeal from order. Moreover, I find I am supported in this view by a case reported in Sant Lal v. Sri Kishen (1892) I.L.R. 14 All. 221. In the view which I take, however, it is not necessary to amend the memorandum of appeal, aw in my opinion the preliminary objection fails.
7. It was not suggested that if the decree of the Lower Appellate Court should be set aside, an opportunity should be given to the appellants in that Court to bring the representatives of the deceased respondent on the record, as was suggested by the Court in Chandarsang v. Khimabhai (1898) I.L.R. 22 Bom. 718. They had, it was found, by a mistake put a person on the record as representative, who was not in fact the legal representative of the deceased respondent, but even then the application to amend the record was made too late.
8. For the reasons which I have given, I think the proper order for the Lower Appellate Court to have made was to have directed the appeal to abate. I therefore allow this appeal and set aside the decree of the Lower Appellate Court. The result will be that the decree of the first Court will be restored. The appellants are entitled to their costs in this Court and the Lower Appellate Court.