HAREN MAHATHA Vs. CHANUBALA DEBYA

JUDGEMENT

(1.) THIS second appeal is directed against the Judgment and decree dated 13 -3 -80 (decree signed on 3 -4 -80), by reason of which the learned lower appellate Court reversed the Judgment and decree of the trial Court which was passed in Title Suit No. 75/ 77.

(2.) IT appears that during pendency of the appeal pro forma defendant -respondent No. 3, Asutosh Roy died and the substitution petition for substituting his heirs and legal representatives was rejected on 1 -2 -88 merely on the ground that a copy of the said petition was not served on the other -side. Subsequently, another substitution petition was filed but by order dated 30 -7 -88, the same was also dismissed on the ground that similar application having been dismissed, the second application of that type is not maintainable. Under these circumstances when the question arose as to whether the whole appeal has become incompetent, by order dated 8 -8 -88, this Court observed that the competency matter be considered at the time of hearing of this appeal.

(3.) MR . Rajnandan Sahay, learned Counsel appearing on behalf of the respondents, has fairly conceded to the said proposition of law. In such view of the matter, in my view, this appeal can be disposed of even in absence of the heirs and legal representatives of said Asutosh Roy.