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Govinda Kaviraj Purohita Vs. Gauranga Saw and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad56
AppellantGovinda Kaviraj Purohita
RespondentGauranga Saw and ors.
Excerpt:
- .....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 his legal representatives. the objection to this is 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 only 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 and to excuse the delay in seeking that relief. It will of course be unnecessary to consider the second application, unless the first succeeds. 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 his legal representatives. The objection to this is 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 only 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, excused.

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 the Second Appeal; but the petitioner will pay the respondent's, costs in the petitions.


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