DUDUL AHIR Vs. MACKI

JUDGEMENT

(1.) This is an appeal by defendants 1, 4, 9 and 10 against the judgment of Rajkishore Prasad, J. holding that First Appeal No. 199 of 1956 abated as a whole and became incompetent because due to the laches of these appellants the appeal stood dismissed as against defendants 5, 6, 7, 8, 11 and 12 in consequence of a peremptory order

(2.) To appreciate the points in controversy, it is necessary to state the following facts. Defendants 11 and 12 (described as defendants fourth party) were the previous owners of the disputed properties. They sold the same to the plaintiffs' father by a registered sale deed dated the 13th August, 1948. Subsequently, sometime in 1949, they purported to sell separate parcels of the said lands by separate sale deeds in favour of defendants 1 to 10. There was the usual proceeding under Sections 144 and 145 of the Code of Criminal Procedure between the plaintiffs and some of the defendants in respect of some of the properties and it appears that the lands were attached under Section 146, Criminal Procedure Code. The plaintiffs' suit was, therefore, for declaration of title, recovery of possession and mesne profits and also for a decree for a sum of Rs. 2.165 representing the amount in deposit being the net usufruct from the lands which were under attachment in the proceeding under Section 146 Criminal Procedure Code. One of the main issues in that litigation was whether the sale deed dated 13-8-1948 executed by defendants fourth party in favour of the plaintiffs' father was valid, genuine and for consideration (issue No. 5) This issue was decided in favour of the plaintiffs and hence a decree was passed for recovery of possession and also for mesne profits. They were also authorised to withdraw the sum of Rs. 2.165 deposited in the Criminal Courts at Buxar and total costs to the extent of Rs. 957/- were decreed in favour of the plaintiffs to be paid by the contesting defendants. During the pendency of the appeal, however, due to the failure of the present appellants to comply with the peremptory order dated 13-12-1956 the appeal stood dismissed as against the non-appearing respondents 5 to 10 corresponding to defendants 5, 6, 7, 8, 11 and 12.

(3.) Before the learned Single Judge, a preliminary objection was taken Io the maintainability of the appeal on the ground that in the absence of those defendants the decree passed by the trial court could not be varied and that consequently the appeal must be held to have abated as a whole and to have become incompetent. This argument was accepted by the learned Single Judge.