First Appeal No. 685 of 1976. Case: Arjun Tiwary and Ors. Vs Harinandan Tiwary and Ors.. High Court of Patna (India)

Case NumberFirst Appeal No. 685 of 1976
CounselFor Appellant: Binod Kumar Singh, adv.and For Respondents: Rakesh Chandra and Umesh Kumar Singh, Adv.
JudgesBirendra Prasad Verma, J.
IssueCode of Civil Procedure, 1908 (CPC) - Sections 148, 151
Citation2015 (2) PLJR 399
Judgement DateApril 11, 2014
CourtHigh Court of Patna (India)

Order:

Birendra Prasad Verma, J.

  1. This appeal has been filed against the judgment and decree dated 14th August, 1976 passed in Title Suit Nos. 121/41 of 1973/76 by learned 2nd Additional Subordinate Judge, Buxar, whereby the aforesaid suit brought by the plaintiffs-respondents herein for partition of suit properties, detailed in Schedule "Ka" of the plaint, to the extent of half share was decreed on contest with costs. The plaintiffs-respondents herein were found entitled to have half share in the suit properties, detailed in Schedule "Ka" of the plaint. By office notes dated 1.4.2014, it has been pointed out that this appeal stood dismissed as against the substituted respondent Nos. 2(i) to 2(v) on account of non-compliance of the peremptory order dated 4.3.2013 passed by a Bench of this Court. Hence, competency matter of this appeal has been placed for consideration by this Bench.

  2. Learned counsel appearing on behalf of the respondents submits that in view of dismissal of the appeal as against the substituted respondent Nos. 2(i) to 2(v), the whole appeal has become incompetent and cannot proceed further. In support of his above contention, he has placed reliance on a judgment by a Division Bench of this Court in the case of Dhanukha Singh vs. Saudagar Singh [AIR 1955 Patna 240].

  3. Though, learned counsel appearing on behalf of the appellants has argued the matter for some time, but he has not been able to rebut the submissions made by the learned counsel appearing on behalf of the respondents.

  4. From perusal of the record, this Court finds that this appeal was admitted on 16.3.1981 and notices were issued to the respondents. Admittedly, during the pendency of the appeal, respondent No. 2 Kapildeo Tiwary, one of the decree holders, died on 8.11.2005 leaving behind his heirs and legal representatives.

  5. In view of death of respondent No. 2, I.A. No. 659 of 2006 was filed on behalf of the appellants seeking substitution of the heirs and legal representatives of the deceased respondent No. 2, fully detailed in Paragraph No. 2 of the aforesaid Interlocutory Application. The aforesaid Interlocutory Application No. 695 (sic-- 659?) of 2006, which was in the nature of substitution petition, was allowed by an order dated 20.4.2009 and his heirs and legal representatives were substituted. The appellants were granted four weeks' time for filing requisites for issuance of appeal notice upon the substituted heirs of deceased respondent No. 2...

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