D.B. Lal, J.
1. This appeal of Shri Ram Sain and five others, has been directed against the judgment dated 10-10-1969 of the District Judge, Kinnaur. The plaintiff Bhagirath came to Court with the allegations, that he was joint-owner of Khasra No. 466 situate at 'chak' Telengi, Tehsil Kalpa, along with the defendant No. 2 Mansa Ram. The latter sold the entire land to one Nazor. It was stated that the sale of the entire land could not be effected because Mansa Ram owned and possessed one-half share in it. It was further contended that due to certain custom prevailing amongst the tribals, to which the parties belong, Mansa Ram could not dispose of even his own share in the land. It was also pleaded that subsequently Mansa Ram paid back the consideration to Nazor, but he did not return back the land. Hence, the suit was filed for a declaration that the sale was invalid and that the possession of Nazor was illegal.
2. The defendants contested the suit on the allegations, that no such custom prevailed and that the plaintiff himself had once sold his share to somebody else. It was also contended that the suit was time-barred and that the relief of declaration could not be granted because the consequential relief of possession was not asked.
3. The learned Subordinate Judge, Kalpa, dismissed the suit, as he found that the custom was not proved and the property was not ancestral. He further gave the finding that a declaratory relief could not be granted because defendant No. 1 was already in possession. The plaintiff came in appeal before the District Judge. His appeal was accepted and the case was remanded to the trial Court because the learned District Judge found, that proper issue regarding the return of consideration was not framed, nor the pleadings were got clarified, although the plaintiff had asked for amendment of the plaint. At present, the legal representatives of the deceased defendant Nazor have filed this second appeal and the plaintiff and defendant No. 2 have been made respondents.
4. It was contended in the foremost by the learned counsel for the appellants, that Nazor died on 24th August, 1969 while the learned District Judge announced his judgment on 10th of October, 1969. As such whatever order the learned District Judge passed, it was passed against a dead person. The legal representatives who are appellants in this Court, were never brought on the record and therefore, they should be given an opportunity of being heard. This contention of the learned counsel appears to be perfectly justified.
5. It is manifest, Nazor died on 24th of August, 1969 and the order of the learned District Judge is actually an order against a dead person and hence it is a nullity. Such an order has got to be set aside so that the legal representatives of the deceased -- Nazor -- get an opportunity of being heard and the points of controversy are adjudicated in their presence. In this connection, the learned counsel for the respondents rather urged, that this Court can itself substitute the legal representatives who have already filed the second appeal and if it agrees that the order of remand made by the first appellate Court is justified the case shall stand remitted to the trial Court for decision in accordance with law. This course is open to one serious objection, namely, that the legal representatives would not get the opportunity of pleading abatement of the suit because, according to them, the cause of action may not have survived to the remaining defendant No. 2 i.e., Mansa Ram. Under Order 22, Rule 4 (3) of the Civil Procedure Code, an application for substitution of legal representatives was not made within the prescribed period of limitation. As such, perhaps an order of abatement of the suit as against defendant No. I may have to be passed. In that contingency, the plaintiff may have to say something in his favour. In case, it is found that the suit is abated, an application under Rule 9 of Order 22 of the Civil Procedure Code for setting aside such abatement may have to be filed by the plaintiffs and the plaintiffs may succeed in showing a sufficient cause for having prevented from continuing the suit. Thereafter, if occasion arises, the legal representatives of the deceased-defendant would be brought on the record and the appeal shall be heard on merit in their presence. They would obviously contest the remand order, as they are doing in this Court.
6. The question of abatement should, as far as possible, be decided by the Court in which the abatement has occurred. In the instant case, the abatement, if any, occurred in the Court of the learned District Judge and since the question has arisen in second appeal, it is proper in the circumstances, to set aside the order of the learned District Judge and to remit the case to him for decision upon abatement, setting aside of the abatement and substitution of legal representatives. The proper procedure to follow is to set aside the order of the Court of first appeal on the ground that it was passed in respect of a dead person and thereafter to remit the case to him to deal with the question of setting aside abatement and substitution of the heirs of the deceased-defendant. If support is sought from authorities for this view, references can be made to AIR 1956 Pat 373 (Mrs. Gladys Coutts v. Dharkhan Singh and AIR 1964 Pat 247 (Kameshwar Pandey v. Deolal Barhi). It is obvious, the order of the appellate Court in this case cannot be held binding against the legal representatives, as they were never given the opportunity of being heard. This is by itself sufficient to remit the case to the first appellate Court for decision in accordance with law. In this connection, reference can be made to AIR 1961 Orissa 85 (Kashinath Mishra v. Lokenath Mohapatra).
7. In the circumstances, I do not propose to express any opinion as to the merit of the appeal relating to the order of remand made by the learned District Judge. Since the first appellate Court, after deciding the question regarding abatement and substitution of the legal representatives, would have to reopen that matter in the presence of the legal representatives, a decision of that question will naturally be given by that Court. Thereafter the party aggrieved can come up in second appeal in this Court.
8. The appeal is, therefore, allowed and the order of the learned District Judge is set aside. The case is remitted to him, for deciding the questions pertaining to abatement, setting aside of the abatement and substitution of the legal representatives. Thereafter, the appeal shall be heard on merit and a decision given in accordance with law.
9. In the circumstances of the case, no order is made as to costs in this appeal.