(F.M. Reis, J.)

1. Heard Mr. A. D. Bhobe, learned counsel appearing for the appellants, Mr. D. Pangam, learned counsel appearing for respondent no.2 and Mr. J. P. Mulgaonkar, learned counsel appearing for respondent nos. 3 and 4.

2. Admit. Heard forthwith with the consent of the learned counsel.

3. The learned counsel appearing for the respective respondents waive service.

4. Upon hearing the learned counsel appearing for the respective parties, the following point for determination arises in the present appeal.

POINT FOR DETERMINATION

Whether the learned Judge was justified to pass the impugned order holding that the suit filed by the appellants stands abated?

5. Briefly, the facts of the case are that the plaintiffs filed a suit inter-alia praying for a declaration that the sale deed executed in favour of the defendant nos. 3 and 4 is null and void as the plaintiffs were the co-owners of the disputed property. Further relief sought by the plaintiffs was to declare the deed of succession executed by the deceased defendant no.1 as a nullity as the averments therein are false. (The parties shall be referred to their original status in the cause title of the impugned order). Another relief sought by the plaintiffs was for a permanent injunction restraining the defendants from interfering with the disputed property. The original defendant no.1 did not file any written statement but however she expired on 28.09.2010. The plaintiffs filed an application dated 08.12.2010 inter-alia contending that the defendant no.1 had expired and the plaintiffs were only heirs of the deceased defendant no.1 in view of the Will executed by the deceased defendant no.1. The application was allowed and the defendant no.1 was deleted as a party defendant. Thereafter, it appears that the remaining defendant nos. 3 and 4 filed an application inter-alia contending that the suit had abated in terms of the provisions of Order 22 Rule 4 of the Civil Procedure Code on the ground that no legal heirs of the deceased defendant no.1 were brought on record. The learned Judge by impugned order has allowed the said application and dismissed the suit as abated. Being aggrieved by the said order, the plaintiffs have preferred the above appeal.

6. Mr. Bhobe, learned counsel appearing for the appellants in support of the above appeal has pointed out that once the Court had granted the earlier application dated 08.12.2010 allowing deletion of the deceased defendant no.1, the question of thereafter holding the suit as abated does not arise at all. The learned counsel further pointed out that it is the case of the plaintiffs that they are the sole heirs and successors of the deceased defendant no.1. It is further the contention of Mr. Bhobe, learned counsel that as the estate of the deceased defendant no.1 was represented by the plaintiffs, the question of holding that the suit stands abated is totally misplaced. The learned counsel thereafter has taken us through the impugned order passed by the learned Trial Judge to point out that the learned Judge has lost sight of the fact that the plaintiffs had already filed an application on 08.12.2010 intimating the death of the defendant no.1 and that the plaintiffs were the only heirs and successors of the deceased defendant no.1. The learned counsel as such submits that the impugned order be quashed and set aside.

7. On the other hand, Mr. J. P. Mulgaonkar, learned counsel appearing for defendant nos. 3 and 4 has pointed out that considering the prayers of the suit and the reliefs sought by the plaintiffs, as no legal heirs of the deceased defendant no.1 were brought on record within the time prescribed, the learned Judge was justified to hold that the suit be dismissed as abated. The learned counsel further pointed out that admittedly the plaintiffs have not filed any application to bring the legal heirs of the deceased defendant no.1 on record and consequently in terms of the Order 22 Rule 4 of the Civil Procedure Code, the