1. In this appeal the appellant having died, and no application having been made by her legal representative to be substituted in her place, the appeal will abate.
2. A question has been raised as to the power of this Court to award any costs to the respondent, who, there cannot be any doubt, is justly entitled to them. I am of opinion that we have the power to award to the respondent the costs of this appeal, to be recovered from the estate of the deceased appellant.
3. Section 582 of the Code of Civil Procedure is to the following effect: The Appellate Court shall have, in appeals under this chapter, the same powers, and shall perform, as nearly as may be, the same duties, as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted under Chap. V; and in Sections 363 and 365, the word 'plaintiff' shall be held to include an 'appellant.'
4. Although Section 366 is not expressly mentioned here, the power conferred by it on the Court of original jurisdiction to award costs against the estate of the deceased plaintiff is, in my opinion, also conferred on the Appellate Court by the last part of the section cited above. This view is in accordance with a decision of the Bombay High Court in the case of Lakshmibai v. Balkrishna I.L.R. 4 Bom. 654.
5. I would, therefore, award to the respondent the costs of this appeal, to be recovered from the estate of the deceased appellant.
Richard Garth, C.J.
6. I have some doubt whether, in the absence of express legislative authority, we have any right to make an order for costs as against the representatives of the appellant, who are no parties to the record.
7. Section 582 of the Code has provided, that, in Sections 363 and 3651 the word 'plaintiff' shall be held to include an 'appellant.' If the same provision had been made with regard to Section 366,2 all difficulty in this case would have been removed; but the express mention of Sections 363 and 365, and the omission of Section 366, would rather lead to the supposition that the Legislature did not intend' a respondent to have his costs under such circumstances. As my learned brother, however, is disposed to put a more liberal interpretation upon Section 582, and as the view which he takes appears to be supported by the Bombay High Court in the case to which. he has referred, I shall not differ from him on this occasion, more especially as, in my opinion, the justice of the case is entirely in accordance with that view.
8. We trust that the omission, if it is one, may be supplied in the Bill to amend the Civil Procedure Code, which is now before the Legislative Council.
9. The appeal will, therefore, abate, and the respondent will have his costs in this Court.
1[Section 365: In case of the death of a sole plaintiff or sole surviving plaintiff, the Court may, where the cause of action survives, on the application of the legal representative of the deceased, enter his name in the place of such plaintiff on the record, and the suit shall thereupon proceed.]
Proceeding in case of death of sole, or sole surviving, plaintiff.
2 [Section 366; If no such application be made to the Court by any person claiming to be the legal representative of the deceased plaintiff, the Court may pass an order that the suit shall abate, and award 10 the defendant the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff; or the Court may, if it think proper, on the application of the defendant, and upon such terms as to costs or otherwise as it thinks fit, pass such other order as it thinks fit for bringing in the legal representative of the deceased plaintiff, or for proceeding with the suit in order to a final determination of the matter in dispute, or for both those purposes.
Abatement where no application by representative of deceased plaintiff.
Explanation;-A certificate of heirship, or a certificate to collect debts, does not of itself constitute the person holding it the legal representative of the deceased. But when the person holding any such certificate obtains thereby property belonging to the deceased, he may be treated as a legal representative liable in respect of such property.]