KAMLESHWAR SHAHI Vs. AJAY SHANKAR

JUDGEMENT

(1.) Heard learned counsel for the parties and perused the record.

(2.) This writ petition has been filed challenging the order dtd. 10/3/2021 passed by the appellate court rejecting the application (paper 55 ka-2) filed by the petitioner seeking amendment in the substitution application paper No. 37 Ka-2 filed for substituting the heirs of defendant/respondent No. 3 who died during pendency of the appeal.

(3.) Brief facts of the case are that original suit No. 89 of 1968 was filed by the petitioner for the relief that compromise petition filed in Supreme Court in Civil Appeal No. 375 of 1957 which was recorded by the court on 19/5/1958 and incorporated in a decree of the said appeal, so far as it purported to convey the property described in a schedule-IV to Shri Bhagwati declaring illegal void and not binding on the plaintiff. In the aforesaid suit one Gauri Shankar Sahi was added as defendant No. 3 who was substituted after his death by Bhuvneshwar Prasad Sahi. The said suit was dismissed by judgment and decree dtd. 7/5/2012. Against the judgment and decree passed in the suit, first appeal being appeal No. 30 of 2012 was filed by the plaintiff. During the pendency of the appeal Bhuvneshwar Prasad Shahi respondent No. 3 died on 26/10/2018. Petitioner/appellant filed an application for substituting the heirs of deceased defendant/respondent No. 3 being paper No. 37Ka-2. Later on peti-tioner/appellant filed an application Paper No. 55 Ka-2 for amendment in the substitution application praying for relieving the petitioner/appellant from necessity of substituting the legal representative of deceased defen-dant/respondent No. 3 in view of sub-rule (4) of Rule 4 of Order XXII, C.P.C. Application Paper No. 55 Ka-2 has been rejected by the appellate court, hence, the present petition.