1. This is an application by the appellant for an order to rehear the appeal under the following circumstances.
2. Two days before the appeal came on for hearing, the 2nd Respondent had died. Neither the appellant's Vakil, nor the Vakil who filed a Vakalat on behalf of the 2nd respondent was aware of this. This appeal wag heard and we delivered judgment dismissing it with costs. The legal representatives of the 2nd Respondent do not ask us to hear the appeal on the ground that they have been prejudiced by the disposal of the case. The learned Advocate General who appears for the appellant on the present occasion contends that the Judgment passed without bringing the legal representatives of the deceased respondent on the record is a nullity and should be set aside. The question involved is one of considerable importance regarding practice.
2. We have come to the conclusion that the appellant has no claim to a rehearing of the appeal. Under the Code of Civil Procedure, the death of one of the defendants (the same rule applies to respondents) does not abate a suit. Under O. XXII, Rule 4, cl (3) it is provided that if the legal representative. of the deceased defendant is not brought on the record within the time limited by law, the suit shall abate as against such defendant, thereby indicating that the suit can proceed against the other parties on the record. Further if a defendant has not been served owing to the default or neglect of the plaintiff, it is open to him to elect to abandon the suit as against the unserved defendant and to proceed to trial with the suit as against the others; the law also makes provision for the legal representatives of a deceased defendant themselves applying to be brought on the record under certain circumstances. The object of these various provisions is to ensure that no party shall be prejudiced by a hearing in his absence. No rule of law has been quoted to us which enables a party who has had the benefit of a 'full hearing to take advantage of the absence of a party on the record. The dictum of Benson and Sankaran Nair, JJ. in Goda Coopooramier v. Soondarammall I.L.R. (1909) M. 167 is against such a contention. All the decided cases are reconcilable with the principle that it is only a party who has not been heard that can claim a rehearing on the ground that he has been prejudiced. The reasoning in Janardhan v. Ramchandra I.L.R. (1901) B. 817may appear at first sight to point the other way. The statement that under Section 571 of the Old Code the Courts are bound to hear both the parties is not conclusive of the point.
3. Jannardan v. Ramchandra (1901) 4 Bom. L.R. 23 Monee Lall v. Kazee Fazul Hassein 14 W.R. 337 and Ramacharya v. Anantacharya I.L.R. (1895) B. 314 are all cases in which the party prejudiced was granted a rehearing.
4. The rules of practice in England on which our code is based are to the same effect. The decision of Bowen L.J. in Duke v. Davis (1893) L.R. 2 Q.B. 260 lends strong support to the view we have taken. The learned Lord Justice points out that if a party is dead, the records stand good so far as the living parties are concerned; and that any disposal of the case notwithstanding the death erf one of the parties will be valid subject to its being vacated at the instance of the legal representatives of the person who had died.
5. In the interests of justice, it is not desirable to give a right to an unsuccessful litigant to argue his case more than once merely on the ground that one of the other parties to the proceeding was dead at the time of the hearing.
6. The affidavit in this case does not say in what manner the appellant was prejudiced in the conduct of the appeal before us by the fact that the 2nd Respondent was dead at the time. We must decline to rehear the appeal: The petition will be dismissed with costs.
7. In C.M.P. Nos. 1793 to 1795 of 1914:
As the appellant has filed application for bringing in the legal representatives on the record, they will be granted. The Vakil who appears for the added representatives does not wish to have the appeal reargued.