Substitution of legal heirs is mandatory in final decree proceedings when interests are at stake; non-compliance results in abatement of proceedings.

JUDGMENT :

A.C. BEHERA, J.

1. This Second Appeal has been preferred against the confirming judgment.

2. The appellants of this Second Appeal were the defendants before the Trial Court in the suit vide O.S. No.22 of 1966-II and they were the appellants in the First Appeal vide M.A. No.23 of 1984-I.

The respondents of this Second Appeal were the plaintiffs before the Trial Court in the suit vide O.S. No.22 of 1966-II and they were the respondents in the First Appeal vide M.A. No.23 of 1984-I.

3. The suit of the plaintiffs (those are the respondents in this Second Appeal) vide O.S. No.22 of 1966-II before the Trial Court was a suit for passing of a mortgage decree.

4. The factual backgrounds of this Second Appeal as per the materials on record are that, after passing of the preliminary decree in O.S. No.22 of 1966-II by the Trial Court in favour of the plaintiffs and against the defendants, final decree proceeding was continued before the Trial Court in that suit vide O.S. No.22 of 1966-II for making the preliminary decree final.

After passing of the Preliminary decree in O.S. No.22 of 1966-II and during the pendency of final decree proceeding of the suit vide O.S. No.22 of 1966-II (FD) before the Trial Court, the defendant Nos. 3 & 4 expired, but the plaintiffs did not take any step to substitute their LRs and without, substituting the legal heirs (LRs) of the deceased defendant Nos. 3 and 4, they (plaintiffs) proceeded with the final decree proceeding of O.S. No.22 of 1966-II(FD).

So, the Defendant Nos.6, 11, 12 & 14 filed a petition before the Trial Court in that final decree proceeding of O.S. No.22 of 1966-II(FD) praying for dismissal of the final decree proceeding on the ground of abatement of that final decree proceeding as a whole, for non-substitution of the legal heirs of the defendant Nos.3 & 4, as the Preliminary decree was passed in respect of the undivided shares of all the defendants including the deceased defendant Nos.3 & 4. But the Trial Court rejected the said petition of the defendants for dismissal of the final decree proceeding vide O.S. No.22 of 1966-II(FD) on the ground abatement of the same as a whole for non-substitution of the LRs of defendant Nos.3 & 4 as per its order dated 03.08.1982 by assigning the reasons that, substitution of the LRs of defendant Nos.3 and 4 are not necessary due to in-applicability of Rule 4 of Order 22 of the CPC to the final decree proceeding for substitution of the LRs of the deceased defendant Nos.3 & 4, because, they (defendant Nos.3 & 4) have expired after the passing of the preliminary decree of that O.S. No.22 of 1966-II and during the pendency of final decree proceeding thereof.

On being dissatisfied with the above order dtd.03.08.1982 passed in O.S. No.22 of 1966-II(FD) by the Trial Court rejecting the petition of the defendants for dismissal of the final decree proceeding as a whole on the ground of abatement, they (defendants) challenged the same by preferring the 1^st appeal vide M.A. No.23 of 1984-I being the appellants against the plaintiffs by arraying them (plaintiffs) as respondents.

The 1^st Appellate Court dismissed that 1^st Appeal vide M.A. No.23 of 1984-I of the defendants vide its Judgment and Decree dtd.06.09.1988 and 14.09.1988 respectively accepting the findings and observations made by the Trial Court in its order dtd.03.08.1982 passed in O.S. No.22 of 1966-II against the defendants for continuance of the final decree in O.S. No.22 of 1966-II(FD) without substituting the LRs of the deceased defendants 3 and 4 by placing reliance in the ratio