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Sheik Farid Saheb Vs. Kulasam Beebi and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.688
AppellantSheik Farid Saheb
RespondentKulasam Beebi and ors.
Excerpt:
practice - appeal--one party died pending filing of appeal--legal representative not brought on record--partition suit. - .....the judgment of the subordinate judge does not show that any objection was taken to the appeal proceeding without the representatives of the 3rd defendant being brought in as parties. we are unable to see how a decree for partition could be passed without this being done. we are, however, not in possession of the facts which led to this extremely irregular course. the proper procedure, in the circumstances, seems to be to reverse the decree of the appellate court and ask it to dispose of the appeal afresh. if the appeal be found not to be maintainable without the representatives of the 3rd defendant being brought in and if the appellate court finds no reason to excuse the delay on. the part of the plaintiff to do so, the appeal would have to be dismissed. if the lower appellate court.....
Judgment:

1. This is an appeal against the decree of the Subordinate Judge's Court of Ellore, awarding plaintiff partition of several properties. There were three defendants originally in the suit. The District Munsif dismissed the suit. The 2nd defendant appealed. In the meanwhile, apparently the 3rd defendant had died and the appeal memorandum was put in without bringing his legal representatives on record. The judgment of the Subordinate Judge does not show that any objection was taken to the appeal proceeding without the representatives of the 3rd defendant being brought in as parties. We are unable to see how a decree for partition could be passed without this being done. We are, however, not in possession of the facts which led to this extremely irregular course. The proper procedure, in the circumstances, seems to be to reverse the decree of the Appellate Court and ask it to dispose of the appeal afresh. If the appeal be found not to be maintainable without the representatives of the 3rd defendant being brought in and if the Appellate Court finds no reason to excuse the delay on. the part of the plaintiff to do so, the appeal would have to be dismissed. If the lower Appellate Court finds good reasons to allow the appeal memorandum to be amended and to excuse the delay on the part of the plaintiff, it will proceed to deal with the appeal on the merits. The costs of the second appeal will abide the result.


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