Shakuntala Devi & Ors vs Jai Prakash Sah & Ors on 17 July, 2013

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Patna High Court - Orders

Shakuntala Devi & Ors vs Jai Prakash Sah & Ors on 17 July, 2013

Bench: Mungeshwar Sahoo

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                        Civil Review No.174 of 2011
                                                     In
                                        First Appeal No. 248 of 1981
                  ======================================================
                  Shakuntala Devi & Ors
                                                                      .... .... Petitioner/s
                                                   Versus
                  Jai Prakash Sah & Ors
                                                                     .... .... Respondent/s
                  ======================================================
                  Appearance :
                  For the Petitioner/s   : Mr. Ram Sevak Choudhary
                  For the Respondent/s    : Mr.
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
                  ORAL ORDER

13   17-07-2013

Pursuant to the earlier order dated 24.6.2013 the record of the first appeal and the lower court record have been placed before this Court at the time of hearing of this civil review application under the heading 'for admission'.

At the very outset, the learned Senior counsel Mr. Dhruv Narayan appearing on behalf of the appellants submitted that the application has been filed under Order 41 Rule 21 of the Code of Civil Procedure for re-hearing of the first appeal on the ground that the legal representative of the deceased respondent No. 4 namely Mulchand Mandal was not substituted and not heard. According to the learned counsel, therefore, this application be treated as MJC application. The learned counsel for the opposite parties has got no objection.

Therefore, the parties are heard in this review application treating the application as MJC application i.e. for re- hearing of the first appeal.

Patna High Court C. REV. No.174 of 2011 (13) dt.17-07-2013 2

Without going to the merits of the statements made in the application as to whether the respondent no.4 died in the year 2006 or in which year it appears that no substitution application has been filed. The learned counsel for the opposite parties who is appellant in the first appeal submitted that the appellants have no knowledge about the death of the respondent No.4, therefore, they had not filed the application for substitution. Moreover, no information has given by the respondents as provided under Order 22 Rule 10(A) C.P.C.

In view of the aforesaid circumstances, the application is allowed. The judgment and decree passed by this court dated 30.9.2010 is set aside. The first appeal No. 248 of 1981 is restored to its original file.

Since the legal representatives of the deceased respondent no.4 have already appeared in the MJC application and at their instance the judgment passed by this Court has been set aside, they are substituted in place of the deceased respondent No.4 after condoning the delay, if any and set aside the abatement, if any.

Since the record of the first appeal is available, the parties are heard in part in the first appeal. The office shall list the first appeal in hearing list No.1 on 19.7.2013.

S.S./-                                                                (Mungeshwar Sahoo, J)

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Patna High Court - Orders