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Head Note

The Code of Civil Procedure, 1908  - Section 98 (2) ,  (3)

Letters Patent of the High Court of Madras, Clause 36 (as adopted by Andhra Pradesh High Court) -Appeal - Judges of Division Bench divided on opinion - Two learned Judges of the Division Bench passed separate judgments - One of the learned Judges allowed the appeal and set aside the trial court judgment, whereas another learned Judge affirmed the trial court finding and dismissed the appeal - Both the learned Judges differed not only on the point of facts but also on the point of law - The learned Chief Justice, therefore, referred the matter to the third Judge for deciding the appeal - The learned third Judge, after going through the judgments of the learned differing Judges, formulated various issues and recorded its finding on all the points - The learned third Judge finally upheld the finding recorded by one of the learned differing Judges and allowed the appeal - Held that there has been complete compliance of Clause 36 of the Letters Patent of the Andhra Pradesh High Court and the impugned judgment cannot be vitiated on account of non- adoption of procedure as contemplated under Section 98 of the Code as for those courts, the procedure of which is governed by Letters Patent, the power has been expressly reserved by Sub section (3) of Section 98 - Hence, in the instant case the procedure provided in the Letters Patent of the High Court shall prevail.

The Code of Civil Procedure, 1908  - Order XXII Rule (2) ,  Rule (3) ,  Rule (4)

Legal Representative - Non substitution of - Deceased Plaintiff - Abatement of appeal - Plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter alia that after the death of their predecessor-in-title, who was admittedly the Pattadar and Khatadar, the plaintiffs succeeded the estate as sharers being the sons of Khatadar - All the plaintiffs had equal shares in the suit property left by their predecessors - Held that in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. - By reason of non-substitution of the legal representative(s) of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall not stand abated - Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated.

Topic(s)-Legal Representative - Non substitution of - Appeal not abated