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Supreme Court Of India
R.C. LAHOTI, CJI., D.M. DHARMADHIKARI, J.
MAHMUD MIAN (DEAD) THROUGH LRS. AND ANOTHER- Appellants
Versus
SHAMSUDDIN MIAN (DEAD) THROUGH LRS. AND OTHERS - Respondents
Civil Appeal No. 1550 of 2005,
Decided on March 4, 2005
Civil Procedure Code, 1908, 22, Rules 3, 4 and 11 - Partition suit - On account of death of one of the parties, the appeal could not abate in its entirety.- Legal representatives of deceased respondents Nos. 2, 5 and 22 permitted to be brought on record- The appeal therefore, allowed-The impugned judgment of the High Court set aside and the letters patent appeal remanded to the High Court for hearing and decision afresh on merits- Division Bench of the High Court also to examine the question of maintainability of letters patent appeal. ( paras 4 to 8 )
ORDER
IAs Nos. 1 and 2
1. Delay condoned. Prayer for substitution allowed. Legal representatives of deceased Respondents 2, 5 and 22 are permitted to be brought on record. The respondents plea that the appeal had abated in the High Court itself is kept open. The names of Respondents 20 and 21 are deleted from the array of parties, at the risk of the petitioners.
IA No.3
2. Prayer seeking deletion of the name of Petitioner 2 is allowed as her LRs are already on record.
3. Leave granted.
4. After hearing the learned counsel for the parties, we are satisfied that the impugned judgment of the Division Bench does not satisfactorily dispose of the appeal. It was a partition suit. On account of the death of one of the parties, the appeal could not have abated in its entirety. This appeal is, therefore, allowed. The impugned judgment dated 3-3-2000 is set aside and the letters patent appeal is remanded to the High Court for hearing and decision afresh on merits.
5. The learned counsel for the respondents submits that the letters patent appeal before the High Court was not maintainable. That plea does not appear to have been raised before the High Court. While hearing the appeal on merits, the Division Bench of the High Court shall also examine the question of maintainability of letters patent appeal.
6. Both the learned counsel for the parties pray that the litigation being about 35 years old, the appeal may be heard expeditiously. We allow the parties liberty of making that prayer before the High Court.
7. No order as to costs.
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