In the case of death of a party in an appeal against a preliminary decree in a partition suit, the relevant provisions are those contained in Order XXII Rule 10(1) of the Code of Civil Procedure, 1908, which allows the suit to be continued by or against the person to or upon whom such interest has come or devolved.

Ashis Kumar Chakraborty, J.

This application is at the instance of heirs and legal representatives of the sole respondent in the second appeal who died intestate on April 27, 2015. The applicants have prayed for dismissal of the appeal after recording abatement of the appeal on the ground that in spite of the death of the sole respondent, being the plaintiff in the suit for partition, the defendants appellants have not brought her heirs and legal representatives on the records of the appeal.

2. In spite of service of this application on all the defendants appellants it was only the appellant no. 3 who contested this application by filing his affidavit in opposition.

3. Mr. Pradip Kumar Roy, learned counsel appearing for the applicants, contended that a period of 150 days from the date of death of the sole respondent has expired and no application has been filed for substitution of the applicants, in place and stead of their deceased mother by setting aside the abatement of the appeal, after condonation of delay. Thus, he urged that this Court should allow the present application of the applicants by recording abatement of the appeal.

4. Mr. Roy submitted that admittedly in the present case the sole respondent, since deceased filed the partition suit against the defendants appellants and the trial Court passed the preliminary decree declaring that the plaintiff respondent, since deceased has one-fifth (1/5th) share in the suit properties, which was affirmed by the learned first appellate court. It is preliminary decree passed by the learned first appellate court which is the subject-matter of challenge in the second appeal. According to Mr. Roy, admittedly the judgments and decrees passed by both the learned Courts below are common judgments and decrees against the defendants appellants and since no step has been taken by the defendants appellants for setting aside of the abatement of the appeal against the plaintiff respondent, since deceased the entire appeal has abated. Mr. Roy relied on the decisions of the Supreme Court in the cases of State of Punjab Vs. Nathu Ram, reported in AIR 1962 SC 89, Sri Chand Vs. Jagdish Pershad Kishan Chand, reported in AIR 1966 SC 1427 and Badni (Dead) by LRS. Vs. Siri Chand (Dead) by LRS., reported in (1999) 2 SCC 448.

5. Mr. Nisith Mukherjee, learned counsel appearing for the defendant appellant no. 3, submitted that although it is a fact that the sole plaintiff respondent has died, but it is not a fit case that this Court shall pass an order recording the abatement of the entire appeal. He cited the decision of the Hon'ble Supreme Court in the case of Govt. of Andhra Pradesh Vs. Pratap Karan, reported in AIR 2016 SC 1717.

6. I have considered the facts of the present case as also the submission made by both Mr. Roy and Mr. Mukherjee, learned counsel appearing for the respective parties. Admittedly the suit filed by the plaintiff respondent, since deceased, was a suit for partition. Both the learned Courts below have passed a preliminary decree in favour of the plaintiff respondent, since deceased, declaring her 1/5th share in the suit property. It is the preliminary decree passed by the learned Courts below in the partition suit, which are the subject matters of challenge in the second appeal. The provisions of abatement of a suit or an appeal are contained in sub-rule (3) and sub-rule (4) of Order XXII read with sub-rule (11) of Order XXII of the Code of Civil Procedure, 1908 (hereinafter called as “the Code”). However, it is well settled principle that once a preliminary decree is passed in a partition suit, the provisions contained in either Rule 3 or Rule 4 of Order XXII of the Code does not apply to any appeal.

7. Once a preliminary decree is passed in a partition suit, it cannot be said that the “right to sue” either under Rule 3 or Rule 4 of Order XXII exists in favour of the plaintiff or against the defendant in the partition suit. They acquire rights on the basis of the prelimin