PARBATBHAI MOHANBHAI Vs. BALUBHAI KANJIBHAI RUDANI

JUDGEMENT

(1.) PRESENT Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant � original defendant No.2 � Parbatbhai Mohanbhai challenging the Judgement and Order passed by the learned Principal District Judge, Amreli in Regular Civil Appeal No. 7 of 1983 by which the learned appellate court has allowed the said appeal preferred by the respondent No.1 herein � original plaintiff � Kanjibhai Jerambhai by quashing and setting aside the judgement and decree passed by the learned Civil Judge (JD), Dhari dtd.18/10/1982 in Regular Civil Suit No.147 of 1979. It is the case on behalf of the appellant � original defendant No.2 that the impugned Judgement and Order passed by the learned appellate court without bringing the heirs of the respondent No.1 in appeal � original defendant No.2 � Mohanbhai Dahyabhai Tolia. The learned advocate appearing on behalf of the respondent No.1 herein � original appellant is not disputing the aforesaid fact. He has also stated at the bar that as such after the impugned Judgement and Order passed by the learned appellate court appellant herein � original defendant No.2 who was respondent No.2 in the said appeal submitted application Ex.27 before the learned appellate court under Order 22 Rule 4 of the Code of Civil Procedure and no further order has been passed by the learned appellate court on the said ground. It is submitted that even the execution of the application filed by the original plaintiff � original appellant to execute the judgement and decree passed by the learned appellate court was ordered to be stayed on the purshis submitted by the respondent No.1 herein � original plaintiff.

(2.) IT is also reported that even the original plaintiff � Kanjibhai Jerambhai has expired. As such his heirs are already brought on record in the present appeal. Thus, it appears that not only the original respondent No.1 � original defendant No.1 � Mohanbhai Dahyabhai has expired, even the original plaintiff � original appellant � Kanjibhai Jerambhai has also expired. It is also not in dispute that the heirs of both of them are already brought on record in the present Second Appeal.

(3.) IT is also agreed between the learned advocates appearing on behalf of the respective parties that in view of the above, the learned appellate court is not required to pass any order on the application Ex.27 as in view of the above, heirs of the original appellant � Kanjibhai Jerambhai as well as heirs of the original respondent No.1 � Mohanbhai Dahyabhai are permitted to be brought on record. It is also agreed that as the impugned Judgement and Order passed by the learned appellate court is set aside and the matter is remanded to the learned appellate court, execution petition already filed, does not survive and the same may be treated to have been disposed of with a liberty to file a fresh execution petition on the judgement and order that may be passed by the learned appellate court in appeal on remand.