1992 INSC 0385
                                               Mani Ram and another

                                                           Vs

                                               Hari Singh and others

                                   Civil Appeals Nos. 1267 and 1268 of 1978

                                       (T. K. Thommen, S. P. Bharucha JJ)

                                                      21.07.1992

                                                    JUDGEMENT

BHARUCHA, J:-

1. The learned single Judge of the High Court of Punjab and Haryana found no merit in Regular
Second Appeal No. 601 of 1971 and dismissed the same with costs. He allowed, to the extent
indicated in the judgment and order under appeal, Regular Second Appeal No. 105 of 1971 with no
order as to costs.

2. Learned counsel for the appellants fairly stated that, in view of the judgment of this Court in
Atam Prakash v. State of Haryana, (1986) 2 SCC 249: (AIR 1986 SC 859), there was no merit in the
appeal against the order on Regular Second Appeal No. 601 of 1971.

3. Learned counsel for the appellants, however, contended that the decree made in Regular Second
Appeal No. 105 of 1971 was in favour, inter alia, of a dead man, namely, the second appellant Rup
Ram and that, therefore, the decree should be set aside.

4. We find that after Rup Ram died an application(Civil Miscellaneous No. 1122/C of 1975) under
O. 22, R. 9 read with S. 151 of the Code of Civil Procedure was made praying that delay be
condoned, the legal representatives of the deceased, appellant Rup Ram be allowed to be brought on
record and the abatement, if any, be set aside. Simultaneously, a second application (Civil
Miscellaneous No. 1123/C of 1975) was filed under O. 22, R. 3 read with S. 151 of the Code of
Civil Procedure praying that the three sons of Rup Ram be brought on record as appellant in his
place. In the order under appeal, the learned single Judge, stated, "Since R.S.A. No. 601 of 1971 has
been dismissed, Civil Miscellaneous Applications Nos. 1122C and 1123C of 1975 have become
infructuous and the same are also dismissed."

5. Clearly, there was a misapprehension, in mind of the learned single Judge. The aforesaid
applications were made to bring the heirs of Rup Ram on record as appellants in Appeal No. 105 of
1971 and, since the learned single Judge was allowing that appeal in part, he ought to have
considered the two applications on merits. However, this is not a good ground for setting aside the
decree. At the most, there would be a case for remand but even that, we think, is not necessary for
the applications are clearly allowable. There was a delay of 15 days in the application to bring the
heirs on record and it was explained, supported by a medical certificate, that the third appellant, who
was looking after the appeals before the High Court, had suffered from typhoid during the relevant
period. We are supported in the view that we take by the judgment of this Court in Harjeet Singh v.
Raj Kishore, (1984) 3 SCC 573: (AIR 1984 SC 1238).
6. In the result, the appeals are dismissed. There shall be no order as to costs.
Appeals dismissed.
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