S.P. Mohapatra, J.
1. Defendant No. 1 and defendants 3 to 10 are the appellants in this second appeal against the reversing judgment of the lower appellate Court arising out of a suit for declaration of title, recovery of possession and for damages. The suit is in respect of an area 1.24 appertaining to plot] No. 15 of Khata No. 12. It is unnecessary to detail the facts of the case as I am going to remand the case for disposal in accordance with law by the lower appellate Court. It will be sufficient to mention that on the plaintiffs' allegation trespass was committed by defendants 1 to 10 on 11-6-52 which serves as the cause of action for the suit where the palintiffs base their title on a lease granted by the father of defendant No. 11, the landlord, on 19-5-1932.
2. The trial Court dismissed the plaintiffs' suit finding possession with defendants 1 to 10 and further finding that the lease was not genuine and the plaintiffs were not in possession of the suit property. The plaintiffs came up in appeal before the lower appellate Court. My attention has been drawn to an important fact by Mr. Mishra, appearing on behalf of the appellants, that defendant No. 2, who was respondent No. 2 in the lower appellate Court died on 2-12-57 and the appellate judgment was delivered on 7-2-58, the appeal having been heard on 7th January and 8th January 1958.
Mr. Mishra contends that the decree is a nullity and therefore this appeal must succeed. The contention cannot be accepted in full. It is clear that the appeal was disposed of within 90 days from the date of death of respondent No 2 (defendant No. 2). The plaintiffs-appellants in law had the right to apply for substitution within 90 days from the date of death of one of the respondents. Before that right had been extinct, that is before the lapse of 90 days from the date of death, the appeal was heard and judgment delivered. It cannot, therefore, be said that the appeal had abated. I am not prepared to accept that the decree passed is to be deemed! a nullity.
It is to be mentioned here that defendants 1 and 3 to 10 while filing this appeal have made the legal representatives of defendant No. 2 parties to this appeal. I must observe that even though the decree passed by the lower appellate Court cannot be treated as a nullity as the appeal had not abated, it is manifest that the said decree cannot be binding against the legal representatives of deceased defendant No. 2. The legal representatives therefore have got the right to support the judgment of the trial Court. They must therefore be given an opportunity I of being heard.
3. The appeal therefore must be allowed, thejudgment and decree passed by the lower appellateCourt, in the absence of legal representatives of thedeceased respondent No. 2 (defendant No. 2), areset aside and the case as remanded to the lower appellate Court for disposal in accordance with law.after giving all parties full opportunities of beingheard. The plaintiff-appellants in the lower appellate Court must take out notice to the legal representatives of deceased! respondent No. 2 who wasdefendant No. 2 in the trial Court. Yesterday thatIs on 17-2-1960 an affidavit was filed by LokenathMohapatra, respondent No. 1, stating the date ofdeath of defendant No. 2. Mr. G. G. Das appearingon behalf of the respondents, states that this affidavitmay be ignored and he does not press this affidavit.Accordingly the affidavit is ignored. Parties are tobear their own costs of this Court.