RAMASHRAY MAHTO Vs. AMIRI MAHTO

JUDGEMENT

(1.) Heard Mr. Mangal Prasad Mishra for the appellants, and Mr. Vijay Shankar Srivastava for respondent No. 1. The defendants are the appellants. This appeal is directed against the order dated 25-5-1999, passed by the learned 6th Additional District Judge, Motihari, in Title Appeal No. 99 of 1993 (Ramashray Mahato and Ors. v. Amiri Mahto and Ors., whereby he has held that the appeal at the instance of the present appellants has abated on account of non-substitution of heirs of a co-appellant.

(2.) The plaintiff (respondent No. 1 herein) had instituted the suit for declaration of title and consequential reliefs which was decreed by judgment dated 18-10-1993. The defendants preferred Title Appeal No. 99 of 1993 before the learned District Judge, Motihari. Appellant No. 2 (Jiya Lal Mahto) died on 25-8-1998, and steps for substitution were not taken. Therefore, the plaintiff (respondent No, 1 herein) filed an application on 15-2-1999, praying therein that the appeal had abated in view of non-substitution of deceased appellant No. 2. Thereafter, on 17-3-1999, an application under Order XXII, Rules 4 of the Code of Civil Procedure (hereinafter referred to as the 'Code') was filed on behalf of the surviving appellants praying therein to set aside the abatement and substitute the heirs of late Jiya Lal Mahto. Before this application could be taken up, the heirs of deceased appellant on 22-3-1999 filed an application under Order I, Rule 10 to implead them as appellants. Both these applications have been rejected by the impugned order and it has been held that the appeal as a whole has abated.

(3.) While assailing the validity of the impugned order, learned Counsel for the defendants (appellants) submits that the impugned order is bad in law. It is submitted that law is well settled that in case heirs of the deceased are already represented, then substitution must be allowed irrespective of the delay. He next submits that the learned Additional District Judge should have condoned the delay in the facts and circumstances of the case. He lastly submits that the application under Order I, Rule 10 should have been allowed. He relies on the following reported judgments :