HOSSAIN (MD) Vs. DILDAR BEGUM

JUDGEMENT

(1.) This appeal by leave is against order dated 23-5-1999 passed by the High Court Division in Civil Revision No. 176 of 1990 rejecting the appellants' application for substitution of the heirs of deceased respondents on the ground that the revision case stood abated against deceased opposite parties and that no separate application was filed for setting aside the abatement.

(2.) Respondent Nos. 1 to 27 as plaintiffs instituted Partition Suit No. 275 of 1983 before the learned Assistant Judge, Cox's Bazar praying for declaration of title and partition in respect of the suit land comprising an area of 2 acres impleading the predecessor of the present appellants and other defendant-petitioners and proforma defendant respondents. The predecessor of appellant 1(a) to 1 (c), 2(1) to 2(8), 8(1) to 8(5) and other defendants entered appearance in the suit and contested the same and the suit was decreed in preliminary form by judgment and order dated 25-5-1987. Against that judgment and decree predecessor of the present appellants and other defendants preferred Other Appeal No. 52 of 1987 before the learned District Judge, Cox's Bazar and the learned Subordinate Judge, Cox's Bazar dismissed the appeal. On being aggrieved by and dissatisfied with the judgment and decree passed in the aforesaid appeal the appellants and others preferred Civil Revision No. 176 of 1990 before the High Court Division. During pendency of the Civil Revision defendant Nos. 2, 8 and plaintiff Nos. 19, 20, 21 and 27 died and an application was filed before the High Court Division for substitution of the heirs and representatives of those deceased persons but the High Court Division by order dated 23-5-1999 rejected the application holding that there was no prayer for setting aside the abatement and no separate application was filed for that purpose and the application that was filed was not in proper form and order. Thereafter separate application praying for substitution of the heirs of the aforesaid deceased persons were filed on 9-6-1999 which was rejected by the High Court Division on 15-6-1999 holding that the applications are out of time and the Rule has already abated against all the petitioners.

(3.) On being aggrieved by this order of the High Court Division the petitioners moved this Division and leave was granted in the following terms: It is argued on, behalf of the petitioners that there can be no question of abatement but for the combined application of the provision of Order XXII, rules 3 and 4 of the Code of Civil Procedure and the material articles of schedule 1 to the Limitation Act but as neither Order XXII nor Limitation Act applied to Civil revision application the revision case cannot be held to have abated against the deceased parties. The High Court Division acted illegally in rejecting the application of the petitioner to bring the heirs of the deceased parties on record."