JUDGMENT :

1. This writ petition is under Article 227 of the Constitution of India whereby and whereunder the order dated 01.10.2015 passed in Title Appeal No. 81 of 2012 (Annexure-4) has been assailed by which the petition filed under Order I Rule 10(2) of Code of Civil Procedure by the respondents/proposed legal heirs of the plaintiff dated 22.06.2013 has been allowed.

2. The background of the case is that the respondent/plaintiff namely, Jitani Devi has filed a title suit being Title Suit No. 132 of 1996 for declaration of her title over 40 acres of land in Plot No. 564, Khata No. 230, Mouza-Sabalpur, District-Giridih but after filing of the said suit, the plaintiff, namely, Jitani Devi had died on 10.05.2002 without her examination in the said title suit but the fact about the death of the said Jitani Devi has not been brought to the notice of the court and the trial was allowed to be proceeded, ultimately, judgment was passed on 20.09.2012 i.e. after about 10 years of her death, without substituting her legal heirs as parties.

3. The petitioners have preferred an appeal against the judgment and decree passed in Title Suit no. 132 of 1996 dated 20.09.2012 against the sole plaintiff, namely, Jitani Devi, and in course of pendency of the appeal, the legal heirs, respondent herein, filed a petition on 22.06.2013 under Order I Rule 10(2) of the CPC for substitution of the legal heirs of Jitani Devi which has been objected by the judgment debtors, petitioners herein, on the ground that the sole plaintiff, namely, Jitani Devi had already died on 10.05.2002 and as such, in absence of substitution of the sole plaintiff through her legal heirs in the suit ultimately led to abatement and the suit ought to have been dismissed but the suit has been allowed to be proceeded and therefore, the judgment and decree passed in the aforesaid suit is nothing but nullity in the eye of law but the trial court has allowed the petition dated 22.06.2013 with a direction to implead the name of legal heirs of Jitani Devi as mentioned in the petition as respondents, against the said order the present writ petition has been filed.

4. This Court after hearing the petitioners on 14th June, 2019 issued notice to the respondents, in pursuance thereto, appearance has been made by the respondents through their counsel, namely, Mr. Prabhash Kr. Sinha, who has submitted that since the judgment/ decree has already been passed and the same has been challenged by the petitioners before the appellate court and as such they being the necessary parties by virtue of legal heirs of the sole plaintiff, namely, Jitani Devi, which prompted the legal heirs, respondents herein, to file petition under Order I Rule 10(2) of the CPC and the trial court after taking into consideration the implication of the aforesaid provision, has allowed the same and as such the same is having no illegality.

5. This Court after having heard the learned counsel for the parties and after going across the pleading made in the writ petition, deem it fit and proper to discuss about certain provisions of law which are relevant for its consideration in the facts and circumstances of the instant case.

Order XXII contains a provision to deal with in respect of cases of death, marriage and insolvency of parties.

Rule 1, provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

The right to sue accruing in Order XXII in the CPC means the right to bring a suit asserting a right to the same relief which the deceased person asserted at the time of his death.

The death of a plaintiff of defendant would not cause abatement of the suit if the right to sue survives.

Rule 2 thereof, provides the procedure where one of several plaintiffs or defendants dies and right to sue survives.

The aforesaid provision provides that where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or pla