Anantakrishna Ayyar, J.
1. The plaintiff filed the suit to recover money due for certain instalments of interest which had accrued due under a mortgage bond executed in favour of the plaintiff. The plea of the contesting defendant 3 was that there was a part payment made by him which had not been given credit to by the plaintiff. The first Court found against that plea and he has preferred an appeal to the lower appellate Court to which he had made as party respondents the plaintiff in whose favour the decree had been passed as also the other defendants 1, 2 and 4. The appeal came on for hearing on 29th September 1925 and judgment was pronounced on 12th day of October 1925. But on 21st September 1925, plaintiff-respondent 1 had died. That fact was not known either to the learned vakil for the appellant or to the vakil who had been engaged by the deceased plaintiff-respondent. 1. The hearing of the appeal proceeded with the result that the learned District Judge confirmed the decision of the first Court on the merits and dismissed the appeal with costs. Defendant 3 has preferred this second appeal and he has brought on record as party respondent to this second appeal in addition to the other defendants also the legal representatives of the deceased plaintiff.
2. The first question raised by the learned advocate for the appellant is that the lower appellate Court had no jurisdiction to proceed with the hearing of the appeal after the death of respondent-plaintiff 1. The learned advocate argued that, when once a party really interested in the subject-matter of the appeal died, the whole of the proceedings should be kept in suspense and it is only after the legal representatives are brought on the record that the litigation regains life and is ready for adjudication by Courts. He cited to me the observations of Wallace and Walsh, JJ., in the case reported as Balaramier v. Vasudevan A.I.R. 1929 Mad. 802 in support of his contention. He also brought to my notice the decision in Seshamma v. Venkata Rao A.I.R. 1924 Mad. 713 and Janardhan v. Ram chandra  26 Bom. 317,
3. On behalf of the respondent, that is the legal representative of the plaintiff, the learned advocate who appeared for him distinguished the cases quoted on the appellant's side by observing that those were cases where a decree or order was passed against the party who was dead,by that time in ignorance of the fact of his being dead. They were not cases where the party who complained had been heard, and could not be said to be in any way prejudiced by the legal representative not having been brought on record at the time. He also relied on the decision of this Court in the case reported as Vellayan Chetty v. Jothi Mahalinga Ayer  39 Mad. 386, where Ayling and Seshagiri Iyer, JJ. held that the death of one of the respondents does not abate an appeal and that though the legal representative of the deceased party had the right' if he chose to apply to have the decree vacated and the case freshly decided after hearing him, it was not open to the party who was really heard and against whom a decree was passed on the merits to take advantage of the death of his opponent and claim a rehearing of the appeal on the merits. No doubt the case in Vellayan Chetty v. Jothi Mahalinga Ayer  39 Mad. 386 was a case of the death of one of the respondents in an appeal, but that is not a distinction of importance. The deceased respondent was interested in that appeal, he had engaged a vakil, and the case is an authority for the position that it is only parties who are prejudiced that have got a right to be heard. I need not pause here to consider whether the legal representative of a deceased respondent in those circumstances should really prove prejudice to the satisfaction of the Court before he can claim and obtain a rehearing. The question that arises for decision in the present case as it arose in the case of Vellayan Chetty v. Jothi Mahalinga Ayer  39 Mad. 386 is whether a party who was alive and who was heard was entitled to claim a rehearing of the appeal, because the opposite party was dead at the time, when the legal representative of the deceased does not claim any such rehearing. Following the decision of this Court reported as Vellayan Chetty v. Jothi Mahalinga Ayer  39 Mad. 386 I overrule the first contention raised by the learned advocate for the appellant.
4. The second contention is whether the lower Courts were right in not upholding the plea of part payment raised by defendant 3. That is essentially a question of fact and the finding of the lower appellate Court on that point is binding on me in second appeal. The result is the second appeal is dismissed with costs.