JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. A.C. Sarma, learned Senior counsel assisted by Mr. B. Deory, learned counsel for the applicant. Also heard Mr. T.G. Baruah, learned counsel for the respondent Nos. 2 and 3 and Mr. S. Sarma, learned counsel for the legal heir of respondent No. 4 and Mr. MBU Ahmed, learned counsel for the respondent No. 1.

2. One Musstt. Nurjahan Begum, predecessor-in-interest of respondent Nos. 1 (i) to 1(iv) filed a suit for declaration of right title and interest, confirmation of possession as co-sharer, decree for partition, cancellation of gift deed and sale deed and for permanent injunction. The said suit was registered as T.S. No. 37/1989. The Nalini Deka, also contested the suit by filing written statement though he was a proforma defendant. The suit was decreed by the learned court of Civil Judge No. 3, Kamrup under its judgment dated 23.11.2009.

3. Being aggrieved, two appeals were preferred, one by the principal defendant and also by proforma defendant No. 8 i.e. Nalini Kt. Deka. Both the appeals were dismissed by the learned appellate court under its judgment and decree dated 10.10.2013 with certain modification. The applicant preferred a second appeal which was registered as RSA No. 62/2018. Said second appeal was admitted by this court under its order dated 14.03.2018 framing the two following substantial questions of law:

(I) Whether the suit was barred by limitation?

(II) Whether the appellant is a bona-fide purchaser and is protected under Section 41 of the Transfer of Property Act?

4. During the process of service of notice, the respondent No. 1 (i) to 1 (iii) appeared in the second appeal. The learned Advocate for the respondent Nos. 2 and 3 informed the court that respondent No. 1 (iv) i.e. Nurjahan Begum died during the pendency of the first appeal on 13.07.2010.

5. In the aforesaid backdrop, the present application under Order 41 Rule 20 of the CPC is filed for impleadment of the legal heirs of the respondent No. 1 (iv) as party respondents.

6. A serious objection has been raised by Mr. TG Baruah, learned counsel appearing for the respondent Nos. 2 and 3. Also heard Mr. S Sarma, who has appeared on behalf of the legal heirs of deceased respondent No. 1 (iv).

7. Mr. Baruah contends that as the respondent No. 1 (iv) had expired during the first appellate stage, the first appeal stood abated against the all the respondents. Therefore, at this stage of second appeal, such substitution cannot be made. It is also the contention of Mr. Baruah that as the relief sought for in the suit was a joint decree and no separate claim was made against any of the defendants, the appeal has abated as a whole under Order 22 Rule 4 of the CPC. In support of such contention, Mr. Baruah relies on the decision of the Hon’ble Apex Court in Babu Shukhram Singh vs. Ram Dular Singh, AIR 1973 SC 204, Susanta Kr. Choudhury vs. Birendra Kumar Dev, (1996) 2 GLT 385 and Gurnam Singh vs. Gurbachan Kaur, (2017) 13 SCC 414.

8. The Hon’ble Apex court in the case of Delhi Development Authority vs. Diwan Chand Anand, (2022) 10 SCC 428 after dealing elaborately with the proposition of law as regards to substitution and abatement, more particularly, the decision in Hemareddi vs. Ramachandra, (2019) 6 SCC 756 and Vennigalla Koteswaramma vs. Malampati Suryamba, (2003) 3 SCC 272 culled out the following principles:

“30. After referring to the decision of this Court in the case of Nathu Ram (supra), in the case of Vennigalla Koteswaramma vs. Malampati Suryamba and Others, (2003) 3 SCC 272, it is observed by this Court that the nature and extent of the abatement in a given case and the decision to be taken thereon will depend upon the facts of each case and, therefore, no exhaustive statement can be made either way and that the decision will ultimately depend upon the fact whether the decree obtained was a joint decree or a separate one. It is further observed that this question cannot and should not also be tested merely on the format