MUNNEY KHAN Vs. KAUSHILYA DEVI

JUDGEMENT

(1.) These three second appeals are directed against a common order dated 30th November. 1978 of the court of District Judge, Etah. holding that the three appeals Nos. 10 of 1974. 208 of 1973 and 272 of 1973 had abated on account of the non-impleadment of the legal representatives of the deceased plaintiff- respondents.

(2.) The first thine which struck me as rather extraordinary in these appeals is that the two deceased plaintiff-respondents Smt. Kaushilya Devi and Smt. Har Peari Devi were originally im-pleaded as the two plaintiff-respondents in the three second appeals filed in this Court and it was only at the time of the hearing under Order 41 Rule 11 of the Code of Civil Procedure that the name of Smt. Kanti Devi. the third respondent was added and the Court directed issue of notice to her alone.

(3.) Before dealing with the merits of the same as put forth by Mr. V. K. Barman, for the defendant-appellant, it appears necessary to deal with the preliminary objection raised by Mr. K. B. L. Gaur. who had moved an application in this Court on behalf of Bhagwat Saran and Rishi Kumar, who claimed to be the legal representatives of Smt. Har Peari Devi, deceased plaintiff-respondent No. 2. He contended that the impugned order did not amount to a decree and the three second appeals filed in this Court were incompetent. I have also heard Mr. Jagdish Prasad, on behalf of the third respondent Smt. Kanti Devi. who was impleaded as the third respondent with the permission of this Court at the hearing of the appeal under Order 41 Rule 11 of the Code of Civil Procedure. I may in this context observe that a perusal of the order dated 7th February, 1980. of this Court on Civil Misc. Application No. 277 of 1980 shows that it was contended before the learned Judge who had heard that application that the applicants Bhaewat Saran and Rishi Kumar had been ad-iudged as decree-hloders. The learned Judge left the question for consideration at the final hearing. Mr. Jagdish Prasad. learned counsel for the third respondent, contended that she the third respondent had been substituted as the legal representative of the plaintiff decree-holders in the execution proceedings. I accordingly permitted both Mr. Jagdish Prasad and Mr. K. B. L. Gaur to participate in the hearing.