MOHD YUSUF ALIAS SARAL MIAN Vs. MAHMOOD MIAN

JUDGEMENT

(1.) THIS Interlocutory application has been filed by Habibullah Ansari and Abdullah Ansari both sons of Late Bigu Mian, resident of Christian Tola Dargah, P.S. & P.S. Bettiah, District West Champaran, under ORDER :22, Rule 10 of the Code of the Civil Procedure stating therein that the original appellant, Mohd. Yusuf @ Saral Mian is already dead and since he had sold the land in dispute to the applicants for consideration under registered sale deed dated 24.2.1987, as such the petitioners have stepped into the shoes of the appellant and as the applicants intend to prosecute this Second Appeal as assignee of the original appellant, their names should be substituted in place of original appellant.

(2.) THE contention of the learned Advocate of the respondents is that this I.A. is not maintainable as the appeal has already abated after the death of sole appellant Md. Yusuf @ Saral Mian. The learned Advocate submitted that applicants have not disclosed the date of death of the sole appellant intentionally as the sole appellant has died long and long ago and the suit has already abated. His further contention is that as per para 2 of the I.A., the applicants had purchased the disputed land in the year 1987 during the pendency of the first appeal and there is absolutely no explanation on the part of the applicants as to why they did not come earlier or what prevented them from being impleaded as party in the first appeal and, as such, this I.A. can not be allowed specially when the suit has already abated.

(3.) THERE is no dispute between the parties that the suit has already abated due to the death of the sole appellant. According to the learned Advocate of the respondents, the sole appellant died in the year 1992, whereas, according to the learned Advocate of the applicants the sole appellant died in the year 2002.