H.L. AGRAWAL, J.

(1.) In this second appeal by the defendants, the only relevant question that arises for consideration is as to whether their appeal in the lower appellate court had abated entirely or if at all, in part. The court of appeal below has held that the whole appeal abated on account of the death of one of the respondents.

(2.) The precise facts to appreciate the question arising for determination are that a suit for partition was filed by the plaintiff-respondents claiming 1/3rd share in the suit properties. One Ram Dular Singh was defendant No. 2 and his son Sukram Singh, defendant No. 3. Ram Dular Singh did not file any written statement. But the pleas of some of the contesting defendants including the appellants was that there had already been a previous partition. The trial court decreed the suit and, therefore, the appellants filed a title appeal in the court of the District Judge, Muzaffiarpur. In that appeal, Ram Dular Singh was respondent No. 3 and his son Sukhram Singh was respondent No. 4. Unfortunately, for the appellants, this Ram Dular Singh died on the 12th March, 1968 during the pendency of the appeal in that court and the appellants did not take any step for substitution. Long after the expiry of the period of limitation prescribed for substitution, the plaintiff-respondents made an application that the said respondent Ram Dular Singh had died leaving behind two more heirs and legal representatives besides his son Sukhram Singh (respondent No. 4), namely, a daughter Maha Sundar Devi and Banarsi Devi being a pre-deceased daughters daughter, respectively and no substitution having been made of the said heirs and legal representatives, the appeal had abated as a whole. In reply to this petition of the plaintiffs, the defendants-appellants made an application praying for expunging the name of the said respondent No. 3 and taking a definite stand that the deceased respondent had left only one son as heir and legal representative, namely, Sukhram Singh, who was already on the record of the case as respondent No. 4, no question for substitution arose. The plaintiffs again filed a rejoinder to this petition and in reply to this petition of the plaintiffs, the appellants this time filed a petition that the assertion of the plaintiffs of the existence of more heirs and legal representatives of the deceased Ram Dular Singh was not correct and further stated that if it was thought expedient, in order to avoid any controversy, they had no objection if the alleged heirs and legal representatives be added as party respondents.

(3.) In spite of these conflicting attitudes adopted by the respective parties, the learned Additional District Judge did not think it necessary to direct any enquiry under Rule 5 of Order 22 of the Code of Civil Procedure and when the appeal was taken up for final hearing, under the impression that the attitude of the appellants in praying for addition of those two heirs and legal representatives amounted to an admission of the existence of those two heirs and legal representatives, for want of their substitution, in his opinion, the appeal abated as a whole. It may be stated that the prayer for addition of those two heirs and legal representatives had already been disallowed earlier. There is no appearance on behalf of the respondents in this Court and by taking permission of this Court, the appellants also impleaded as party respondents the aforesaid alleged female heirs and legal representatives.

(4.) Having heard learned counsel for the appellants, in my opinion, the learned Additional District Judge has committed an apparent error of law in holding that the appeal had abated as a whole. In view of the decisions, which I shall presently refer, it is now well settled that in the circumstances of the present case there was no question of abatement at all in view of the son of the deceased respondent being already on the record of the case. The Supreme Court has since considered this question in two decisions, namely, in the case of Dolai Maliko v. Krushna Chandra Patnaik (AIR 1967 SC 49 [LQ/SC/1966/95] ) and then again in the case of Mahabir Prasad v. Jage Ram (AIR 1971 SC 742 [LQ/SC/1971/10] ) and clearly laid down that where in a proceeding, a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the prescribed period of limitation, the proceeding will not abate on that account. The aforesaid two decisions have been considered in a Division Bench decision of this Court in State of Bihar v. Saubhagya Sundari Devi (AIR 1972 Pat 200) and the principle was followed as it ought to have been.

(5.) Before parting with this case, it is necessary to refer to a recent Bench decision of this Court in the case of Parhlad v. Sonelal (AIR 1974 Pat 338 [LQ/PatHC/1974/45] ). Mr. Justice S.K. Jha, with whom Mr. Justice S.N.P. Singh (now Honble the Chief Justice) agreed, appears to have taken a contrary view by holding that if one of the legal representatives of a deceased respondent is on the record, and no other legal representative is sought to be brought on the record by making an application, the question of abatement did arise and the case abates as against the heirs of deceased respondent. This decision makes the position a little anomalous and is in conflict with the earlier Bench decision of this Court in AIR 1972 Pat 200 (supra). I venture to take a view that the decision in the case of Parhlad Jha apart from being entirely distinguishable on the facts of that case, is also per incuriam which aspect I shall presently discuss.

(6.) In Parhlad Jhas case, the plaintiff had brought a suit for recovery of possession against a number of defendants including a minor defendant Satahu Mahto, in which his father Sonelal Mahto was defendant No. 1. The plaintiff lost in the trial court, and during the pendency of his appeal in the lower appellate court, the said minor defendant Satahu Mahto died, leaving behind his mother Mossomat Daulat Kuer, who was not brought on the record within the period of limitation. The lower appellate court dismissed the appeal holding that on account of the non-substitution of the aforesaid heir of Satahu Mahto, the whole appeal had become incompetent and, accordingly, dismissed the same. The appellant had also relied upon Mahabir Prasads case (supra) in support of the proposition that even where one of the heirs and legal representatives of a deceased respondent was on the record and no other heir or legal representative in existence was sought to be brought on the record by an application, the question of abatement did not arise. The learned Judge has considered this case at some length to show that the Supreme Court upheld the maintainability of the appeal on application of the terms of Rule 4 of Order 41 of the Code, and did not intend to lay down any such principle in general.

(7.) However, in my opinion, the situation in Mahabir Prasads case (AIR 1971 SC 742 [LQ/SC/1971/10] ) was entirely different from Parhlad Jhas case. In Parhlad Jhas case, defendant No. 1, the father of the minor defendant Satahu Mahto being an heir in class II was not his heir at all in view of his mother Mossomat Daulat Kuer, a Class I heir being in existence. As such in Parhlad Jhas case no heir or legal representative of the deceased respondent was on the record, whereas in Mahabir Prasads case the son was already on the record. Further, no notice seems to have been taken of the view expressed by the Supreme Court in Mahabir Prasads case in paragraph 6 of the judgment, where their Lordships, after considering the application of the terms of Rule 4 of Order 41 of the Code have adverted to the alternative argument raised on behalf of the appellant and in my view laid down a general proposition of law already referred to above that "where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, and if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation, the proceeding will not abate on that ground". On the facts of the case before me, however, the son of the deceased respondent No. 3 was already on the record as respondent No. 4 and, therefore, the principles laid down in Mahabir Prasads case have got direct application. A Full Bench of this Court in the case of Ramashray Roy v. Pashupati Kumar Pathak (AIR 1963 Pat 1 [LQ/PatHC/1962/80] ) (FB) has clearly laid down that the court, is not bound to follow the decision of its own if given per incuriam. A decision is given per incuriam where the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the Supreme Court. In the former case, the Court is bound to decide which decision to follow, and in the letter case, it is bound by the decision of the Supreme Court.

(8.) In view of the clear exposition of the law laid down by the Supreme Court on the subject settling the matter beyond all controversy in Mahabir Prasads case (AIR 1971 SC 742 [LQ/SC/1971/10] ), following the rule of Judicial Comity, I feel myself bound by the said decision which also has got a direct application to the facts of the case before me, and venture to hold that the decision of this Court reported in AIR 1974 Pat 338 [LQ/PatHC/1974/45] (supra) is per incuriam for three reasons; (i) it has not referred to another Bench decision of this Court taking a contrary view in AIR 1972 Pat 200; (ii) the alternative argument accepted by the Supreme Court in Mahabir Prasads case (AIR 1971 SC 742 [LQ/SC/1971/10] ); which actually lays the general principle has not been noticed and (iii) the facts in Parhlad Jhas case AIR 1974 Pat 338 [LQ/PatHC/1974/45] are quite distinguishable and did not call for any application of the principles laid down in the case of Mahabir Prasad. Following the ratio of the cases in the aforesaid authorities, it must be held that in view of the presence of the son, namely, Sukhram Singh, on the death of his father on the record, even assuming that he left behind any further heirs or legal representatives, as alleged by the plaintiffs, no question of abatement arose and the title appeal was fully competent and maintainable.

(9.) I would accordingly, set aside the judgment and decree of the court of appeal below and send the case back to that court for giving a fresh decision on the merit of this case after hearing the parties, in accordance with law. As there is no appearance on behalf of the respondents and the question being purely a question of law, I shall make no order as to costs.