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Dr. Dwarkaprasad and anr. Vs. Mt. Safurabai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 9 of 1956
Judge
Reported inAIR1958MP307
ActsCode of Civil Procedure (CPC) , 1908 - Sections 107, 151, 152 and 153
AppellantDr. Dwarkaprasad and anr.
RespondentMt. Safurabai and ors.
Appellant AdvocateR.S. Dabir, Adv.
Respondent AdvocateA.R. Choubey, Adv. for Non-applicants 13 and 14
Cases ReferredGopala Kristnayya v. Lakshmana Rao
Excerpt:
.....written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - notice of the application was sent to the proposed legal representatives as well as to the proposed guardian of one of the legal representatives, but through oversight the application was not placed before the court for formal orders for substitution. the correction in the memorandum of appeal as well as in the petition for leave to appeal to the supreme court be made forthwith and got attested by the reader of the court......1943 one lalluram died. an application (no. 612 of 1953) was filed on 20-3-1953 for bringing his legal representatives on record. notice of the application was sent to the proposed legal representatives as well as to the proposed guardian of one of the legal representatives, but through oversight the application was not placed before the court for formal orders for substitution. shri m. adhikari, however, appeared for the proposed legal representatives in the appeal, and it was heard without making a formal order for substitution. as a result the decree which was eventually passed showed the name of lalluram and not those of his legal representatives.the counsel who applied for leave to appeal to the supreme court took the names of the parties from those contained in the decree and.....
Judgment:
ORDER

1. It appears that during the course of First Appeal No. 75 of 1943 one Lalluram died. An application (No. 612 of 1953) was filed on 20-3-1953 for bringing his legal representatives on record. Notice of the application was sent to the proposed legal representatives as well as to the proposed guardian of one of the legal representatives, but through oversight the application was not placed before the Court for formal orders for substitution. Shri M. Adhikari, however, appeared for the proposed legal representatives in the appeal, and it was heard without making a formal order for substitution. As a result the decree which was eventually passed showed the name of Lalluram and not those of his legal representatives.

The counsel who applied for leave to appeal to the Supreme Court took the names of the parties from those contained in the decree and showed once again the name of Lalluram. He, however, made an application, which is before us, for amending the memorandum of appeal by showing the names of the legal representatives of Lalluram, even at this late stage.

2. We think that Section 153 of the Code of Civil Procedure is wide enough to permit action to be taken to regularise the defective procedure of the Court. All that remained to be done was a formal order for bringing the legal representatives of Lalluram on the record of the case, though the legal representatives as parties to the appeal did appear and conduct it.

In view of this, even though the case is finished, we think we should correct the error, which has remained on the record of the case, by allowing application No. 724 of 1957 and ordering correction of the memorandum of appeal and the decree even at this late stage. We take action under Sections 151, 152 and 153 of the Code of Civil Procedure.

3. As a result of this correction, which will be made, the question arises whether the petition for leave to appeal to the Supreme Court has not been filed against a dead person. Here the bona fides of the petitioners is borne out because they took the names of the parties from the decree and put them as they were. We think that this case is covered by the decision of the Full Bench of the Madras High Court reported in Gopala Kristnayya v. Lakshmana Rao, ILR 449 Mad 18: (AIR 1925 Mad 1210) (A), and does not involve more than a correction of the cause title of the petition for leave to appeal to the Supreme Court which is pending before us.

We, therefore, direct that the cause-title of the petition shall be suitably amended by scoring out the name of Lalluram and showing therein the names of his legal representatives. The correction in the memorandum of appeal as well as in the petition for leave to appeal to the Supreme Court be made forthwith and got attested by the Reader of the Court.

4. We understand that process has already been made in the name of the legal representatives but has not been issued because those persons were not shown in the cause-title of the petition. That process will not be accepted and shall issue.


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