Case: Kanhiayalal Vs. Rameshwar and Others

3. A few facts will immediately focus the attention on the question involved in this appeal.4. Therespondent 1, Rameshwar, obtained a decree for Rs. 8500 plus interest against respondents 2, 3 and 4. One Bhikaji father of the appellant and respondents 6 and 7 and husband of respondent 5 stood as surety for theAfter the decree was put into execution certain objections were raised by thewhich were overruled and a revision petition against the order failed. In the meantime a house of thewas attached. Subsequently, the executions was set in motion against the surety Bhikaji and he raised certain objections. Pending the execution proceedings Bhikaji died and his heirs and legal representatives were substituted. They include appellant and respondents 5 to 9. The substituted heirs raised certain objections. These objections were overruled, whereupon the present appellant and respondents 5 to 9 preferred an appeal being Civil Appeal No. 8 of 1977. When the appeal was pending in the High Court it was brought to the notice of the Court that the2 Hukum Chand had died. Appellant and respondents 5 to 9 moved an application for substitution. On behalf of the executinga contention was raised that as the heirs and legal representatives of the deceased Hukum Chandwere not substituted in time, the appeal has abated. By a short cryptic order, the High Court accepted the contention of the decreeholder and disposed of the appeal, as having abated.5. It is this order which is in appeal before us.

Reasoning:
We are of the opinion date the High Court was clearly in error in holding that the appeal preferred by the present appellant had abated on account of the death of thewho was one of thedo not propose to examine the first contention. But the second contention which we are inclined to accept is sufficient to dispose of this appeal. Mr. Naunit Lal submitted that the appellant is the heir of the surety, contesting suretys liability and the appellant was not seeking any relief against the originalwho was a proforma respondent. It was urged that the failure to implead the legal representatives of a proforma, respondent against whom no relief is claimed would not have the effect of abating the appeal preferred by the present appellant. The heir of surety was contesting his liability to satisfy the decretal debt. The appellant claimed no relief against the proformaor is contesting his liability with which we are not concerned. By the death of proforma respondent,right to sue does not revive against him or his heirs and their presence was unnecessary and the appeal can proceed in their absence. Therefore, the High Court was clearly in error in holding that the appeal would abate on the sole ground that the heirs of the deceasedproforma respondent 2 were not substituted in time. No substitution was necessary and appeal could have been proceeded with in the absence of the deceasedand disposed of on merits.