On a perusal of the above facts, it is evident that the appeal of the appellant was dismissed on mere technicality. It has also not been denied by learned counsel for the respondents that the legal heirs of Gurdev Singh, Decree Holder, who were already contesting the execution proceedings, appeared in the appeal to contest the same. It is also not denied that the legal heirs of Gurdev Singh nor their counsel tried to bring the same to the notice of the Court that the Memo of Parties, in the appeal needs amendment. The respondents, herein, have tried to take advantage of the apparent mistake made by the appellant in having impleaded Gurdev Singh, Decree Holder, who had expired, as the respondents instead of the legal heirs of Gurdev Singh, Decree Holder. The appellants were to gain nothing by impleading the deceased-Gurdev Singh as respondent instead of the legal heirs. Consequence of an order against a dead person, is of no help and especially, in the facts of the present case, wherein, all knew about the death of Gurdev Singh. It is not a case that there was any malafide intention on the part of the appellant to implead deceased-Gurdev Singh as a party instead of legal heirs of Gurdev Singh. It is also not denied that an application to implead the legal heirs of Gurdev Singh was duly allowed by the trial Court. In the matter of civil nature, as in the present one, the party cannot be allowed to suffer on account of technicality and error as in the present case, especially, when the respondents were a party to perpetuate the error by not disclosing that Gurdev Singh had died and the Memo of Parties should be, accordingly, corrected inspite of the fact that they duly appeared in the appeal.
