HUPEN MAJHI @ HAPAN TUDU Vs. MUNSHI ABUL KHAIR

JUDGEMENT

(1.) A short question involved in this appeal is whether a Second Miscellaneous Appeal against order of remand passed by the District Judge abated as a whole in the High Court Division on the death of four out of sixteen defendant-appellants whose heirs were not substituted in the appeal. Both the District Judge as well as the learned Judges of the High Court Division are of the view that the Second Miscellaneous Appeal abated as a whole and is under question.

(2.) Facts for disposal of this appeal are that the respondent brought a suit for declaration of title and recovery of possession of a certain property. The suit contested by different sets of defendants was decreed by the trial Court. The appellants along with others since deceased, having preferred an appeal against the said judgment, the suit was remanded to the trial Court for deciding the point of limitation. The appellants and the other defendants preferred an appeal against the order of remand to the High Court Division being S. M. A. No. 12 of 1968. It appears that while the said appeal was pending in the High Court Division 4 defendant- appellants died out no substitution of their heirs was made in the appeal. The miscellaneous appeal was however heard and was allowed and the order of remand was set aside by the High Court Division with a direction that the Court of Appeal below should remit only the issue of limitation to the trial Court for a finding under Order 41, rule 25 of the Code of Civil Procedure keeping the appeal pending there. When the records were received back in the Court of Appeal below an application was made on behalf of the appellants for substitution of the heirs of the deceased appellants, who died during the pendency of the second miscellaneous appeal in the High Court Division, on setting aside the abatement.

(3.) The learned District Judge was of the view that the deceased appellants having died, during the pendency of the miscellaneous appeal in the High Court Division the said appeal abated, and until unless the abatement of the appeal was set aside the Court of appeal below had no power to substitute and so dismissed the application for substitution. The High Court Division which moved under section 115 of the Code of Civil Procedure against the order also took the view that because of non-substitution of the heirs of the deceased appellants the second miscellaneous appeal had abated as a whole.