MAJEED KHAN Vs. BUDDHU KHAN

JUDGEMENT

(1.) This appeal is directed by the appellant under Order 43 Rule 1 (k) and (w) of the CPC being aggrieved by the order dated 3.4.98 passed by the Vth Addl. District Judge, Bhopal in MJC No.21/97 dismissing his application filed under Order 22 Rule 9 read with Order 47 Rule 1 of the CPC.

(2.) The facts giving rise to this appeal are that the appellant preferred the aforesaid application in the subordinate appellate court for setting aside the abatement of the Civil Appeal No. 6-A/95 caused on account of the death of respondent NO.1 Yusuf Khan (in such appeal) along with the prayer for recalling and reviewing the order dated 12.5.1997 holding the aforesaid appeal as abated in toto. As per averments of it appellant being illiterate and uneducated person, did not have any knowledge about the legal procedure, thus he preferred the aforesaid appeal engaging the counsel Shri Sher Singh to prosecute the same. The same was held to be abated in toto vide order dated 12.5.97 on account of non-bringing the legal representatives of deceased respondent/plaintiff No.1 Yusuf Khan on record within the prescribed limitation. He informed the death of said respondent to his counsel who did not inform him regarding limitation and for filling any application in this regard. As per further averments on non taking the steps such appeal would have been abated against such respondent only and not against other respondents.

(3.) In reply of respondents 1 and 2, the averments of the aforesaid application are denied. The decree subject matter of the appeal was passed in their suit for declaration and partition of a joint property by which the different shares in property were decided by the trial Court and, at the stage of appeal, on account of death of one of the respondent, the appeal could not be adjudicated in the absence of brining the legal representatives of the deceased Yusuf Khan (the respondent) between the remaining parties. Therefore, the appeal was rightly held to be abated in toto. In the lack of any explanation for brining the legal representatives of Yusuf Khan on record at belated stage, the alleged abatement of the appeal can not be set aside. The appellate court has not committed any error or mistake on the face of the record or otherwise , therefore, the ground for review is also not available to the appellant.