IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 430 of 2007 Date of decision: 29.4.2008 Smt. Kanta Devi & Ors. ... Appellants Versus Smt. Sharda Sharma & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellants: Mr. Neeraj Gupta vice Mr. Praneet Gupta, Advocate. For the respondents: Mr. Ajay Sharma, Advocate, for respondents No. 1 to 4. Ms. Charu Gupta, Advocate, for respondent No. 5. V.K. Ahuja, J. : This is a regular second appeal filed by the appellants under Section 100 CPC against the judgment and decree passed by the learned Additional District Judge, Una, dated 31.10.2003, affirming the judgment and decree passed on 10.2.1997 by Sub Judge It Class, Court No. 1 Una. Briefly stated the facts of the case are that the predecessor- in-interest of the respondents, namely, Data Ram through his L.Rs Madan Lal, Kamal Dev, Shiv Ram and Vidya Sagar filed a suit for declaration and permanent injunction as against the appellants in regard to the suit land detailed in the plaint. The suit was tried by the learned trial Court and was decreed and the plaintiffs were held owners in possession and relief 1Whether reporters of Local Papers may be allowed to see the judgment? 2 of permanent injunction was also granted in favour of the plaintiffs and as against the defendants. Those findings were affirmed on appeal by the learned first Appellate Court and being aggrieved, the appellants filed the present appeal. A perusal of the record shows that application under Chapter 7 Rule 2d of H.P. High Court Appellate Side Rules, 1997, was filed alleging that appellant No. 1 Subhash Chand has died on 28.2.2001 when the appeal was pending before the learned first Appellate Court. Copy of death entry of Subhash Chand was also placed on record to substantiate the date of death. Therefore, it is clear that Subhash Chand died when the appeal was pending before the learned first Appellate Court, and, therefore, no effective decree could have been passed in the case until and unless the L.Rs of Subhash Chand were brought on record or his name was struck off. A question arises as to by which Court this plea is to be considered as to whether the application could be allowed or not and as to whether the appeal has abated or not. This question stands settled by the decision of this Court in Karam Chand and others Vs. Bakshi Ram and others, 2002(1) Shimla Law Cases 9 and another decision of this Court reported in Jagdish Vs. Ram Karan & others, 2002(2) S.L.J. 968. It has been held by this Court that the application under Order 22 Rule 4 C.P.C. is to be decided by the Court where the lis was pending. Once the lis was pending before the learned first Appellate Court and the decree in question has been passed against a dead person, the matter has to go back to the same Court who has to decide the question as to whether the application should be allowed or not, who are L.Rs of deceased appellant Subhash Chand or whether the appeal in question 3 has abated or not. All such questions are to be decided by the Court to whom the application shall be sent for consideration and, therefore, the judgment and decree passed by the learned first Appellate Court is set aside. The case is remanded back to learned first Appellate Court alongwith the application filed and the said Court shall decide the question in accordance with law and then decide the appeal after hearing the parties afresh. A plea was raised by the learned counsel for respondents No. 1 to 4 that he is ready to concede the application and the application may be decided by this Court. This question doe not arise since the decree in question was passed by the learned first Appellate Court against a dead person and , therefore, this question has to be decided by the said Court after setting aside the decree in this case. The plea putforth by the learned counsel for respondents No. 1 to 4 is repelled being devoid of any force. In view of the above decision, the appeal is allowed and the record of the Courts below, if any, alongwith a copy of this judgment and the application under Chapter 7 Rule 2d of H.P. High Court Appellate Side Rules, 1997 (CMP No. 61 of 2004) alongwith the reply, if any, be sent to the learned first Appellate Court for deciding the matter afresh in view of the observations made above. There is no order as to costs. A photo copy of the application and the reply and affidavit, if any, may be placed on record for record of this case by the Registry. CMP(M) No. 488 of 2006: This application has become infructuous and the applicants may apply before the learned first Appellate Court for bringing on record 4 the L.Rs of deceased respondent No. 1 Madan Lal. The application stands disposed of. CMP No. 752 of 2007: In view of the orders passed in the main appeal, this application has become infructuous and is disposed of accordingly. ( V.K. Ahuja ), April 29, 2008 Judge (BSS)