VIJAY SINGH JADON Vs. SITAB KHAN

JUDGEMENT

(1.) WOULD substitution of legal heir at any intermediate stage would enure for other stages of proceedings as well? This is the legal issue raised in this petition under Section 115 of the Code of Civil Procedure, 1908. The facts in brief are as under:

(2.) AN appeal was preferred against a judgment and decree passed by the Civil Judge, Class II, Sabalgarh. This was pending in Court of Third Additional Judge to the Court of District Judge, Morena. During the pending of the appeal, the appellate Court called for a report. During this period, appellant Bhola died. Instead of taking proceedings under Order 22, Rule 3 of the Code of Civil Procedure before the appellate Court, these proceedings were taken in the Court from where the report was called. That Court allowed the application under Order 22, Rule 3. The present petitioners were permitted to be brought on record. After the report, when the matter was taken up by the appellate Court the appeal was dismissed on the ground that it had abated as steps were not taken for bringing the legal heirs on the record of the appeal within the stipulated period. It is against this order, the present petition has been preferred.

(3.) THE learned counsel appearing for the petitioners has placed reliance on the decision given by the Patna High Court reported as Radhaballav Dhoubey and Ors. v. Mahadev Choubey and others, AIR 1973 Patna 37. In the above case, the death took place when the matter was pending in the High Court. The matter was remanded back. It was held that the Court to which the remand was made is to take notice of the substitution made by the Appellate Court. The learned counsel has argued that the ratio of the above decision should be applied to the instant case also. Similar view has been expressed in Suraj Mandar and Ors. v. Dev Mishra and others, AIR 1984 Patna 378. In the above case the defendant died during the pendency of the suit. Later the suit was dismissed in default. Legal heirs were brought on record when proceedings for restoration were pending. It was held that substitution in restoration proceedings is in itself sufficient for continuance of suit.