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TMI Blog1961 (3) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... in the suit before the trial Court. That was a suit which the plaintiff had brought for recovery of possession of the suit schedule property. The plaintiff therein claimed that he had become entitled to the suit schedule property by value of Exhibit 27 which was a sale deed dated 17.4.1946 executed by the defendant. That suit having been dressed by the trial Court, the defendant had preferred an appeal which came up for beating before the second Extra Assistance Judge, Belgaum . That appeal was heard by that learned judge on 4.4.1957 and judgment was pronounced on the same day, dismissing that appeal . It is against that judgment of the Second Extra Assistant Judge, Belgaum, that the present Second Appeal has been filed by the original def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow that application. The lower appellate court pointed out that the Provision, of Order XXII Rule 6 C.P.C. were not applicable, as it had been alleged that the death of the respondent had taken place even before arguments were heard by that court, it also point out that the stand taken by the defendant was to the effect that the decree of the lower appellate court was a nullity, it dismissed the application which had been made by the defendant appellant . It is therefore, that in the Second Appeal itself which came up for hearing that the present application I.A. No. 11 has been filed. (2) The short question for consideration in regard to I.A. No. 11 whether the appellant should be permitted to attend the Appeal Memo bringing on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alabhai, AIR1953Bom356 . In that Bombay case, his Lordship Chagla C.J. had to consider the question of the validity of an appeal which had been filed by a pleader, after his client had died. It was held by his Lordship that the appellant being dead, the pleader who preferred the appeal had no authority to prefer any appeal and the Vakalathnama signed in his favour had come to an end. It was in those circumstances that it was held that such an appeal was a nullity. It seems to, me, that the question of the validity of his appeal filed against a respondent who happened to be dead at the name of filing of that appeal , did not directly arise for determination in that case. In the Madras Full Bench decision above referred to, the learned Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity from its conception of 'a proceeding in the suit' arises in such a case to attract the provision of S. 153 of the Code of Civil Procedure . The reason for taking the view that S. 153 C.P.C. would be applicable to an appeal filed against a person who was dead at the time of the institution person of that appeal, is thus clearly stated in the above Mysore decision. I would prefer to follow the above Full Bench decision of the Madras High Court ; though the reason underlying that view has not been explained in detail in the Full Bench decision, it has been made clear in the above said Mysore decision. (4) At one stage of his argument Sri Dayanand appearing for the appellant, suggested that the judgment and decree of the lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the Appeal Memo be amended by bringing the legal representatives of the deceased plaintiff on record. (6) So far as the appeal on merits is concerned, the relevant facts are as follows. In defence to the plaintiff 's suit for possession founded on Exhibit 27 the sale deed which had been executed by the defendant, the latter had put forth two contentions. The first was, a consideration of ₹ 2000/-, the defendant had received only a consideration of ₹ 1800/- and that the balance of ₹ 200/- has not been paid; towards the consideration for the sale. As regards the second contention, it has been held by the courts below that the same barred by S. 91 of the Indian Evidence Act. So far as the first point is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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