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Govindu Kaviraj Purohito Vs. Gauranga Saw and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in75Ind.Cas.739
AppellantGovindu Kaviraj Purohito
RespondentGauranga Saw and ors.
Excerpt:
civil procedure code (act v of 1908), section 153, order 1, rule 10 - appeal filed against deceased respondent--procedure--application to amend cause title by substituting names of legal representatives of deceased, maintainability of. - .....in which the amendment is asked for are that the respondent, whose name is entered in the appeal as presented died before the presentation. we are now asked to substitute for his name those of the legal representatives. in the objection to this that an appeal cannot be presented against a person who has ceased to exist order 1, rule 10 is relied on, but we do not see our way to apply it here, since it refers to suits instituted in the name of a wrong person, and we do not think that it is applicable to a case, such as the present. the power conferred by section 153 is general, but again we do not think we ought to use it, while another course is open to the petitioner, that course being to file another appeal and to have the delay due to his mistake committed in good faith.....
Judgment:

1. These are applications to the Court. to amend the cause title in a second appeal ana to exec se the delay in seeking that relief. It will, of course, be unnecessary to consider the second application, unless the first succee s. The circumstances in which the amendment is asked for are that the respondent, whose name is entered in the appeal as presented died before the presentation. We are now asked to substitute for his name those of the legal representatives. In the objection to this that an appeal cannot be presented against a person who has ceased to exist Order 1, Rule 10 is relied on, but we do not see our way to apply it here, since it refers to suits instituted in the name of a wrong person, and we do not think that it is applicable to a case, such as the present. The power conferred by Section 153 is general, but again we do not think we ought to use it, while another course is open to the petitioner, that course being to file another appeal and to have the delay due to his mistake committed in good faith excuse.

2. Taking this view, we must dismiss these applications and also the second appeal on the ground that no such proceeding as an appeal against a party, who is deceased, is authorised by the Code. There will be no costs in second appeal but the petitioner will pay the respondent's costs in the petitions.


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