NAZIM KHAN Vs. BIBI TOHIDAN

JUDGEMENT

(1.) The present First Appeal has been preferred against the judgment and decree dated 15th March 1990 passed in Title Suit No. 16 of 1979 by the learned 9th Subordinate Judge, Saran, Chapra, whereby the aforesaid suit for partition brought by the plaintiff- respondent no.1 herein with respect to the suit properties, detailed in Schedules-1 and 2 of the plaint, was decreed in part against the contesting defendants and ex parte against the remaining defendants.

(2.) By an office note dated 03.04.2014, the competency matter of the present first appeal has been placed for consideration by this Court in view of order dated 19.08.1998 and in view of the fact that this first appeal has abated as against the heirs and legal representatives of deceased respondent no. 13 and 27, namely, Wokil Khan and Nasruddin Khan, respectively.

(3.) On examination of records, this Court finds that this First Appeal was admitted by an order dated 19.04.1991 and notice was ordered to be issued to the respondents. Subsequently, by office note dated 11.09.1995, it was pointed out that process server has reported that respondent no. 13 and 27, namely, Wokil Khan and Nasruddin Khan are dead. In view of the aforesaid office note dated 11.09.1995, by an order dated 19.10.1995 passed by the learned Lawazima Board, final time till 13.11.1995 was granted to the appellants for filing substitution petition vice deceased respondent no. 13 and 27, subject to law of limitation. Admittedly, this order dated 19.10.1995 was not carried out by the appellants, as a result thereof, the matter was placed for consideration before a Bench of this Court, whereafter by the order dated 16.11.1995 three weeks' further time was granted to the appellants to file substitution petition vice deceased respondent no. 13 and 27. Unfortunately, even this order dated 16.11.1995 passed by a Bench of this Court was not carried out. When this matter was placed once again for consideration before a Bench of this Court, then vide order dated 23.10.1997 it was noted that despite indulgence granted by this Court by order dated 16.11.1995, substitution petition has not been filed on behalf of the appellants. However, one week's further time was granted, failing which it was observed that legal consequences shall follow and the matter shall proceed in accordance with law. Despite aforesaid indulgence granted by this Court by order dated 23.10.1997 substitution petition was not filed on behalf of the appellants. Under the aforesaid circumstances, by order dated 19.08.1998 a note of abatement of appeal, as against the heirs and legal representatives of deceased respondent no. 13 and 27, was recorded.