HARI SINGH ETC Vs. LAKHI ETC

JUDGEMENT

(1.) The sole issue arising herein is whether the relevant provisions of abatement in Order 22, Civil Procedure Code, are attracted to an appeal directed against a final decree passed in partition proceedings.

(2.) The suit for partition of the village abadi of Chirasmi was instituted on June 28, 1948. A preliminary decree was passed by the learned Senior Subordinate Judge on May 5, 1949, and in accordance with the report of the local commissioner appointed thereafter, a final decree was passed on August 28, 1950. This final decree was amended under Section 152 of the Civil Procedure Code by the order of the Senior Subordinate Judge, Rohtak, date February 10, 1961. An appeal was then filled before the District Judge, Rohtak. A preliminary objection in the appeal was taken on the ground that Ram Sarup, one of the respondents, had died and his legal representatives had not been impleaded within the period of limitation. Upholding this objection the learned District Judge held that the appeal had abated. However, he proceeded to advert to the merits as well and dismissed the appeal on this additional ground as well by order dated January 22, 1963.

(3.) The present regular second appeal was then instituted in the Court against the decision of the learned District Judge, Rohtak. It is the admitted case that Phul Singh son of Gorkha, respondent No. 4, has died as far back as 1963 and his legal representative have not been brought on the record within the specific period of limitation. On behalf of the respondents, consequently, it is strenously pressed that the whole appeal abates.