Mohd. Yusuf @ Saral Mian vs Mahmood Mian and Another

Syed Md. Mahfooz Alam, J.—This Interlocutory application has been filed by Habibullah Ansari and Abdullah Ansari both sons of Late Bigu Mian, resident of Christian Tola Dargah, P.S. & P.S. Bettiah, District: West Champaran, under Order 22 Rule 10 of the Code of the Civil Procedure stating therein that the original appellant, Mohd. Yusuf @ Saral Mian is already dead and since he had sold the land in dispute to the applicants for consideration under registered sale deed dated 24.2.87, as such the petitioners have stepped into the shoes of the appellant and as the applicants intend to prosecute this Second Appeal as assignee of the original appellant, their names should be substituted in place of original appellant. The contention of the learned Advocate of the respondents is that this I.A. is not maintainable as the appeal has already abated after the death of sole appellant Md. Yusuf @ Saral Mian. The learned Advocate submitted that applicants have not disclosed the date of death of the sole appellant intentionally as the sole appellant has died long-long ago and the suit has already abated. His further contention is that as per para 2 of the I.A., the applicants had purchased the disputed land in the year 1987 during the pendency of the first appeal and there is absolutely no explanation on the part of the applicants as to why they did not come earlier or what prevented them from being impleaded as party in the first appeal and, as such, this I.A. can not be allowed specially when the suit has already abated.

The contention of the learned Advocate of the appellants, is that this I.A. has been filed under Order 22 Rule 10 of the CPC for substituting the applicants in place of original appellant as assignee of the original appellant and, as such, even after abatement of appeal prayer can be allowed. In this regard, the learned Advocate has placed reliance upon the decision report in AIR 1962 Patna 285 (Baijnath Ram & Ors. vs. Mosmat Tunkowati Kuer & Ors.).

There is no dispute between the parties that the suit has already abated due to the death of the sole appellant. According to the learned Advocate of the respondents, the sole appellant died in the year 1992, whereas, according to the learned Advocate of the applicants the sole appellant died in the year 2002.

Thus, even on the basis of the statement of the learned Advocate of the applicants the appeal has already abated. It is the admitted position that legal heirs of sole appellant was not brought on record within the period of limitation, as such, I am of the view that in this case Order 22 Rule 3 sub-ciause-2 will apply as the appeal stands abated. I place reliance on the decision reported in AIR 1962 Patna 285 (supra) cited above. The relevant paragraphs runs as follows:-

"Where there is an appeal from a decree, preliminary or final, and during the pendency of the appeal one of the appellants or respondents dies and the right to sue does not survive to the remaining appellants or against the remaining respondents, then Rule 3 or 4, as the case may be, applies and not Rule 10, and the appeal will abate if the legal representatives are not brought on the record, within the time limited by law as provided in sub-rule (2) of Rule 3 and sub-rule (3) of the Rule 4."

Thus, on the basis of the decision cited above, I hold that since, the legal representative of the sole appellant has not been brought on record within the time limited by law, this Second Appeal has abated and, so, I.A. No. 2250/2006 filed under Order 22 Rule 10 of the Code of the Civil Procedure can not be allowed.

In the result, I find no merit in I.A. No. 2250 of 2006 and, as such, the same is hereby dismissed. Consequent to the dismissal of I.A. No. 2250 of 2006, this Second Appeal is also dismissed as being abated.