T. Nalawade, J.

The appeal is filed against the judgment and decree of Regular Civil Appeal No. 477/1985 which was pending in the Court of the learned Additional District Judge Shrirampur, District Ahmednagar. First Appeal was filed by the original plaintiff against the judgment and decree of Regular Civil Suit No. 360/1980 which was pending in the Court of the Civil Judge, Junior Division, Newasa, District Ahmednagar. The appeal is allowed by the First Appellate Court and the judgment and decree of dismissal of partition suit is set aside and the relief of partition is given in favour of the plaintiff. Both the sides are heard.

2. The appeal is admitted by this Court (other Hon'ble Judge) on following substantial question of law:-

"Whether the exemption from bringing on record the legal representatives of deceased respondent No. 2 - Mukinda cannot be claimed by the respondent No. 1 - Babu without obtaining leave under Rule 4(iv) of Order 22 of C.P.C. in view of "Zahirul Islam v. Mohd. Usman and others" (2003) 1 Supreme Court Cases 476 and whether the impugned Judgment is vitiated due to such technical difficulty ?"

3. The learned counsel for the appellants was allowed to arg