If an appeal is presented against a person who is dead at the date of presentation, the Court may under Sect. 153 Civil Procedure Code, permit the cause title to be amended or may return the appeal memorandum for amendment and representation. We think that the Bench who decided Govinda Kaviraj Purohita v. Gauranga Saw (18 L.W. 54) went too far in dismissing the Second Appeal as incompetent and in declining to exercise its power of correcting errors under Sect. 153 Civil Procedure Code. If the appeal memorandum is not allowed to be amended the party may apply for a refund of the spoilt stamp and may present a fresh appeal. In any case, the Court will, if the appeal is out of time, against the legal representative have to excuse the delay in presentation before it can proceed to hear the appeal.

Although the appeal may be incompetent owing to the wrong person being named as respondent, the Court which deals with it is acting in a proceeding in a suit and as such has full power under Sect. 163 to direct an amendment of the appeal memorandum.

As observed by Ramesam and Wallace JJ. in C. M. P. No. 2807 of 1923 the question resolves itself into one of Court fees only and if the party has only made an unintentional error in inserting the name of the wrong respondent in his appeal memorandum, there is no reason to make him pay Court-fees twice over, and it is simpler for the Court to direct an amendment of the cause title.

The case will go back to the Admission Court with an expression of our opinion that the Court has power to amend the cause title but it is a matter for its discretion whether it should excuse the delay in presentation.

Cost of this reference will be costs in the Second Appeal.