The main legal point established in the judgment is that in absence of a petition to exempt the plaintiff from the necessity of substituting the legal representatives of non-contesting deceased defendants, a Suit / Appeal abates as against the deceased defendants / respondents by operation of law.

This First Appeal has been filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 20th September 1977 passed in Partition Suit No. 29/4 of 1975/1977 by learned 4th Additional Subordinate Judge, Gopalganj, whereby the aforesaid partition suit brought by the plaintiffs-respondent 1st party herein was decreed with costs.

2. By office notes dated 26.02.2014, it has been pointed out that this Appeal has become incompetent in view of its abatement against the heirs and legal representatives of some of the deceased respondents. Therefore, competency matter of the present First Appeal was placed for consideration before the Bench.

3. I heard learned counsel appearing on behalf of the appellants at length on the question of competency of the present Appeal. However, none appeared on behalf of the respondents.

4. It is not under dispute that by the office notes dated 04.04.2000, it was pointed out that the Process Server reported that respondent nos. 10 and 11 are dead. In that view of the matter, by order dated 04.05.2000 passed by the learned Lawazma Board, two weeks’ final time was granted to the appellants for taking steps for substitution vice deceased respondent nos. 10 and 11, subject to law of limitation. Admittedly, the aforesaid order dated 04.05.2000 was not carried out by the appellants, which finds mentioned in the order dated 05.07.2000 passed by learned Lawazma Board. Consequently, when the matter was placed for consideration before a Bench of this Court, by order dated 10.08.2000, a note of abatement was recorded against the heirs of the deceased respondent nos. 10 and 11.

5. It is also not under dispute that more than 13 years have already elapsed, since the aforesaid order dated 10.08.2000 was passed by a Bench of this Court, yet no steps have been taken by the appellants for setting aside the abatement of the Appeal vice deceased respondent nos. 10 and 11. Apparently, the present Appeal became incompetent to that extent in the year 2000 itself.

6. Again by office notes dated 22.01.2007, it was pointed out that respondent no. 8, as per the report of the Process Server, is reported to have died during the pendency of the Appeal. By order dated 26.04.2007 passed by the learned Lawazma Board, four weeks’ final time was granted to the appellants for filing substitution petition vice deceased respondent no. 8, subject to limitation, if any. The aforesaid order dated 26.04.2007 was not carried out, which finds mentioned in the order dated 18.05.2011 passed by the learned Lawazma Board. Accordingly, the matter was placed for consideration before the Bench. By order dated 23.06.2011, a Bench of this Court recorded that this Appeal has abated as against the legal representatives of the deceased respondent no. 8. More than two and half years have elapsed since the aforesaid order dated 23.06.2011, yet till date no petition has been filed on behalf of the appellants for setting aside the abatement of the Appeal vice deceased respondent no. 8. Apparently, this Appeal has become incompetent to that extent.

7. In the aforesaid undisputed factual matrix, this Appeal has been placed for consideration before this Bench as to whether the whole Appeal has become incompetent, as this First Appeal arises out of a judgment and decree passed in a Partition Suit.

8. Learned counsel appearing on behalf of the appellants submitted that the respondent nos. 8, 10 and 11 were the non-contesting defendants in the trial court, as they had not filed their written statement. Therefore, according to him, in terms of Order XXII Rule 4(4) of the Code of Civil Procedure, the appellants are/were not required to take steps for substitution of the legal representatives of the aforesaid deceased respondents. By referring to Order XLI Rule 33 of the Code of Civil Procedure, it was also submitted that the Appellate Court is competent to pass any appropriate decree in the present Appeal, even if steps have not been take