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Kedar Nath Vs. Bismillah Begam and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1926All156; 90Ind.Cas.72
AppellantKedar Nath
RespondentBismillah Begam and anr.
Excerpt:
- .....1921 passed by a subordinate judge of agra certain properties were sold and were purchased by one kedar nath. at the instance of one of the judgment-debtors the sale was set aside and kedar nath filed the present appeal. during the pendency of the appeal, on 14th november 1923 mt. bibbo, who was one of the judgment-debtors made an application to this court stating that she had purchased the property from kedar nath and praying that she might be made an appellant along with kedar nath. the application came before one of us and was opposed by kedar nath's counsel. kedar nath, through his counsel denied the validity of the alleged title of the applicant and stated that he would have no objection if the applicant were made a respondent. it appears from the affidavit filed on behalf of mt......
Judgment:

1. This appeal is very easily disposed of. In execution of decree-No. 166 of 1921 passed by a Subordinate Judge of Agra certain properties were sold and were purchased by one Kedar Nath. At the instance of one of the judgment-debtors the sale was set aside and Kedar Nath filed the present appeal. During the pendency of the appeal, on 14th November 1923 Mt. Bibbo, who was one of the judgment-debtors made an application to this Court stating that she had purchased the property from Kedar Nath and praying that she might be made an appellant along with Kedar Nath. The application came before one of us and was opposed by Kedar Nath's Counsel. Kedar Nath, through his counsel denied the validity of the alleged title of the applicant and stated that he would have no objection if the applicant were made a respondent. It appears from the affidavit filed on behalf of Mt. Bibbo that Kedar Nath had declined to register the sale-deed which, it was alleged, was executed by him in favour of Mt. Bibbo, and the deed was compulsorily registered. Mt. Bibbo did not demand in this Court that the question of title should be decided by remanding an issue to the Court below. She was content to be made a respondent. Her fears were that Kedar Nath would not prosecute the appeal whole-heartedly, and the order allowing Mt. Bibbo to be impleaded as a respondent mentioned that if Kedar Nath did not properly prosecute it, it would be open to Mt. Bibbo to support the appeal. Kedar Nath, however, died pending the appeal and no legal representative of his was brought on the record and the appeal must be regarded as having abated.

2. On behalf of Mt. Bibbo, Mr. S.P. Sinha contended that she was entitled to prosecute the appeal. It was pointed out to him that his client's position as a transferee was neither admitted nor had been established on any trial of an issue between herself and Kedar Nath. Mr. Sinha argued that it was still open to the Court to send back an issue for the trial of the question of the validity of the transfer. The question could be tried only in the presence of the legal representatives of Kedar Nath. But no such legal representatives are on the record, and it is, therefore, impossible for any such issue to be tried as between the estate of Kedar Nath and Mt. Bibbo. Mr. Sinha then argued that if Kedar Nath's legal representatives did not choose to bring themselves on the record his client was not to blame. We are not quite sure that such was the case. Order 22, Rule 3 read with Rule 11, Civil P.C., does not confine the right to make an application to bring on the record the legal representatives of a deceased plaintiff or appellant to them alone. Where, the defendant or a respondent is interested in bringing a deceased plaintiff or appellant's legal representatives on the record it would be open to him to do so.

3. As already stated, neither Kedar Nath nor his legal representatives are before the Court and the question of validity of the alleged transfer of the property in favour of Mt. Bibbo cannot now be determined. Without a determination of Mt. Bibbo's title she cannot be allowed to prosecute an appeal which has abated.

4. The result is that we declare the appeal as having abated. In the circumstances of the case we make no order for costs in favour of Mt. Bibbo. The respondent Mt. Bismilla Begam will get her costs of the appeal from the estate of the deceased Kedar Nath.


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