LAKHI AND OTHERS Vs. SHAM LAL

JUDGEMENT

(1.) THIS order will dispose of Civil Miscellaneous Nos. 1044 -C, 1886 -C and 1887 -C of 1980.

(2.) SHAM Lal respondent in R.S.A No. 749 of 1965 filed a suit (No. 79 of 1963) for possession of land measuring 37 Kanals 2 Marias situate in Village Sondhad, Tehsil Palwal against Lakhi, Sri Chand, sons of Dharma, Tulsi Ajri and Badam sons of Girraj, and the same was dismissed by the Subordinate Judge, Palwal, vide order dated March 23, 1954. Sham Lal filed an appeal against the order of the Subordinate Judge and the same was accepted and he was granted a decree for possession of that land by the Senior Subordinate Judge, Gurgaon, vide order dated May 3, 1965. Lakhi, etc., being aggrieved by the judgment and decree of the Senior Subordinate Judge, Gurgaon, preferred R.S.A. No. 749 of 1965. The appeal was accepted on November 16, 1972, and the decree of Senior Subordinate Judge set aside and the case was remanded under Order 41, Rule 23A, Civil Procedure Code, to the trial Court for deciding issue No. 2 and additional issue No. 2 afresh. During the pendency of the case before the trial Court, Sham Lal having learnt that Ajri appellant in R.S.A. No. 749 of 1965 had died on March 27, 1970 and his legal representatives had not been impleaded, applied that the proceedings could not continue was R.S.A. No. 749 of l965 had abated as a consequence thereof The trial Court did not accept the prayer made by Sham Lal, and opined that the appropriate course for him to follow was to approach the High Court for relief It is under these circumstances that Sham Lal has filed C.M. No. 1044 -C of 1980 praying that in view of the fact that Ajri appellant had died on March 27, 1970, and his legal representatives had not been impleaded, R.S.A. No. 749 of 1965 may be dismissed having abated after recalling the order November 16, 1972, already passed.

(3.) THE admitted facts are that Sham Lal obtained a decree for possession of 37 Kanals 2 Marias of land against lakhi, Sri Chand, Tulsi, Ajri and Badam from the Court of Senior Subordinate Judge, Gurgaon, vide order dated May 3, 1965. All the five judgment debtors preferred R.S.A. No. 749 of 1965, which was disposed of vide order dated November 16, 1972. During the pendency of the Regular Second Appeal, Ajri died on March 27, 1970, and his legal representatives were not impleaded as parties till its disposal. The learned counsel for Sham Lal has argued that R.S.A. No. 749 of 1965 shall stand abated for not impleading the legal representatives of Ajri.