1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 573 of 2006 Haji Suleman Gulam Kadar Vs. Fakuriddin Gulamali Bohra & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri A. S. Mardikar Adv. for appellant. Shri.D.L. Dharmadhikari Adv. for respondents. CORAM: C. L. PANGARKAR J. Dated: 9 th April, 2008. Heard. This is a Second Appeal at the instance of the defendant. Respondent/plaintiff had instituted a suit for ejectment against the original defendant. Suit was for ejectment and for arrears of rent. Judgment of the trial Court discloses that the 2 deceased defendant had appeared in suit after the summonse was served and had sought an adjournment for filing written statement but did not file. It appears that there after counsel for the defendant filed a pursis that defendant had expired. Upon this an application under Order 22 Rule 4 Sub Rule (iv) Civil Procedure Code was filed which was allowed. The heirs thereafter filed an application Ex. 27 alleging that the suit has abated as legal representatives were not brought on record. This application was directed to be decided when the suit was to be decided. The learned Judge of the trial Court recorded the evidence of the plaintiff and decreed the suit. Against this judgment and decree defendant's heirs preferred an appeal before the District Judge. District Judge also dismissed the appeal and confirmed the 3 decree. Learned counsel for the appellant contended that the appellant had initially preferred a revision and the said revision was allowed to be converted into a second appeal and he submits that revision was admitted and thereafter it was converted to second appeal and therefore there was no need to readmit this appeal. The submission of the learned counsel is without any substance. Second appeal has to be admitted by the Court once it is registered as second appeal only on the substantial question of law. Simply because the revision was admitted it cannot be said that automatically this appeal stands admitted. The next ground urged by him was that the suit had actually abated and no decree could have been passed. From the judgment of the trial Court it is apparent that 4 defendant had failed to file written statement in the suit. Order 22 Rule 4 Sub Rule (iv) Civil Procedure Code says that there is no need to bring legal representatives of the defendant on record who has not cared to file written statement in the suit. In the instant case the defendant had not filed written statement and the suit had proceeded without written statement. There was therefore no need in fact, for substitution of the legal representatives. The suit had therefore not abated. Decree could not be said to be against dead person. There is therefore no substantial question of law involved in the appeal. Appeal is therefore dismissed in limine. JUDGE svk