B. Dayal, C.J.
1. This second appeal has been referred to a Division Bench by a learned Single Judge of this Court. The circumstances which have led to it nay be stated as follows. The plaintiffs-appellants filed a suit for partition of Hindu joint family property, in which, among others, they impleaded one Badri as one of the alienees of the property from defendant No. 1. The suit was dismissed by the trial Court. First appeal was filed by the plaintiffs-appellants. During pendency of that appeal, Badri (defendant-respondent No. 3) died. The plaintiffs-appellants made an application for bringing on record the legal representatives of Badri. But, by mistake, the lower appellate Court did not pass any final order on this application, with the result that Badri's name remained on the record, although he was dead. In this state, the appeal was ultimately decided and dismissed. Against this dismissal, the plaintiffs have filed this second appeal. However, since Badri's name remained on the record of the lower appellate Court, in this second appeal also he has been named as one of the respondents. When notice of this appeal was attempted to be served on Badri, the fact was discovered that he died during the pendency of the appeal in the lower appellate Court. The plaintiffs then made an application for bringing on record the legal representatives of Badri and also made an application under Section 5 of the Limitation Act for condonation of delay. This application was rejected by the learned Single Judge of this Court on December 9, 1970, as the delay was not properly explained.
2. In this state, the second appeal came up for hearing before the learned single Judge. It was contended for the plaintiffs-appellants that the decree of the lower appellate Court be set aside, as it wasa nullity in the absence of the heirs of Badri, and the case be sent back to the lower appellate Court for proceeding with the appeal after substituting the heirs of Badri. A Division Bench case of this Court was cited in support of this course of action, but the learned single Judge felt a doubt whether that was the proper course to be followed in the second appeal, because, according to him, the appeal itself Was defective and no order could be passed in a defective appeal; the defect in the appeal being that Badri, a dead man, was mentioned as one of the respondents and not his heirs, Therefore, he felt that no effective order could be passed in the appeal which was not properly constituted. According to the learned single Judge since Badri's heirs, who were necessary parties to the appeal, were not before the Court, no order could be passed except to dismiss the appeal as improperly constituted.
3. We have heard learned counsel for both parties. We are of the opinion that the learned single Judge committed a mistake in not clearly keeping in mind the distinction between the competence of the appeal and the effect of necessary parties not being before the Court and consequently no effective decree could be passed on the dispute before the Court. So far as the competence of the appeal is concerned, it is to be against the decree which was passed by the lower appellate Court, is between the parties who were then validly before the Court. Badri was already dead on the date of the decree. Therefore, his name was redundant on the record. The decree was, therefore, between the other respondents and the plaintiffs-appellants. This decree was obviously wrong. The plaintiffs were certainly entitled to file an appeal against that decree and to argue before this Court that the decree as passed by the lower appellate Court was wrong. In order to constitute a valid second appeal, it was enough that the second appeal filed in this Court was against the decree which was passed by the lower appellate Court. The lower appellate Court having passed a decree between those persons, who were before it at that time, this second appeal, impleading those persons alone, is certainly correctly constituted. However, the inclusion of the name of Badri in this second appeal was again redundant, as he had died when the decree was prepared by the lower appellate Court.
4. In such a second appeal, although it is properly filed, if all the persons, who were necessary parties to the suit, were not parties before the Court, no effective decree on the merits of the dispute between the parties could be passed. This Court bow-ever can certainly look into the invalidity of the decree passed by the lower appellate Court, as it passed the decree when all the necessary parties were not before it and set it aside on that ground.
5. As said above, Badri died while the appeal in the Court below was pending. An application for substitution had been made in the lower appellate Court. Without deciding that application, the lower appellate Court was not justified in taking up the appeal on merits and deciding the same.
6. We accordingly allow the appeal, set aside the judgment and decree of the lower appellate Court and remand the case to that Court for deciding the application for substitution and then proceeding with the appeal according to law. Parties shall bear their own costs in this appeal.