RAM LAKHAN THAKUR Vs. RAGHUNANDAN THAKUR

JUDGEMENT

(1.) THIS first appeal arises out of judgment and decree passed in Title Suit No. 589 of 1974 by learned Subordinate Judge, Gopalganj in which plaintiff -Respondents No. 1 & 2 claimed for carving out their l/4th share in the property scheduled at the foot of the plaint spread in three schedules. The appellants and Respondents 3 to 44 were the defendants.

(2.) IN this appeal, upon the death of appellant No. 2 and Respondent Nos. 10, 12, 17, 26, 27 and 28 a composite petition (Flag O) under Order XXII, Rules 3/4 of the Code of Civil Procedure and Sec. 5 of the Limitation Act was filed seeking substitution of their legal heirs after condoning the delay, if any, and setting aside the abatement. The said petition came up for orders for removing the defects and on undertaking of the learned Counsel, the Court vide order dated 6 -4 -1995 granted two weeks peremptory time to remove the defect, otherwise it was directed that the said petition shall stand rejected without further reference to a Bench. Later on 2 -3 -1998 the Registrar -General noted in his order that the appeal abated as against the heirs vide deceased appellant No. 2 and Respondent Nos. 10, 12, 17, 26, 27 and 28. In the meanwhile, it appears that appellant No. 1 and Respondent No. 1 also died on 19 -1 -1995 and 11 -12 -1994 respectively and a petition at Flag J under Order XXII, Rules 3 / 4 of the Code of Civil Procedure and Sec. 5 of the Limitation Act was filed on 19 -4 -1995 seeking substitution of their heirs and legal representatives after condoning the delay, if any, and set aside the abatement, if any.

(3.) THE office vide its notes dated 9 -3 -1998 reported that the appeal has abated as against the heirs vide deceased appellant No. 2 and respondent Nos. 10, 12, 17, 26, 27 and 28 and under the said circumstances placed the matter before the Bench for consideration and order as to whether the whole appeal become incompetent. It was also reported that the appeal arises out of a suit for partition. On 10 -3 -1998 when the matter was listed under heading for orders none appeared and this Court directed for its listing again on 11 -3 -1998. After hearing learned Counsel for the appellants, who failed to point out that even in the absence of aforementioned appellant No. 2 and respondents No. 10, 12, 17, 26, 27 and 28, the appeal can proceed, this Court vide order dated 11. -3 -1998 held that the appeal has become incompetent and cannot proceed and it was accordingly dismissed. Thereafter, a petition under Order XXII Rules 4 & 9 of the Code of Civil Procedure read with Sec. 151, C.P.C. and Sec. 5 of the Limitation Act at Flag 67 was filed on behalf of the appellants to set aside the abatement and restore the petition at Flag G and consequently, the appeal at its original position and allow the petitions at Flags G and J. A counter -affidavit to the said petition was filed on 7 -5 -1999 on behalf of Respondent No. 8. On 1 -7 -1999 another petition under Order XXII, Rules 3/4 and Sec. 151 of the Code of Civil Procedure read with Sec. 5 of the Limitation Act was filed on behalf of the appellants bringing on record the facts that both the appellants died and contesting Respondents 1 & 2 also died, and that their legal representatives were already substituted and the substitution petition are already on record. Besides the aforesaid contesting parties, the names of other Respondents are also mentioned in the said petition in paragraph 4. It is further stated that all the aforesaid Respondents are neither interested in the appeal nor they were residing at their villages and were residing somewhere else in other State in connection with their livelihood. Hence, the appellants could not know about the date of their death and the substitution petition could not be filed properly within time. Even today the appellants are trying to get the knowledge of dates of death as well as the legal representatives and theirs of the deceased. Under the circumstances, a prayer has been made to allow the said application and expunge the names of the deceased -appellants/Respondents and their legal heirs be directed to be substituted.