Hon’ble Sabhajeet Yadav, J.—By this petition, the petitioner has challenged the order dated 15.1.2001 passed by 5th Additional District Judge, Varanasi contained in Annexure-6 of the writ petition, whereby misc. appeal filed by the petitioner has been dismissed as abated in its entirety.

2. The brief facts leading to the case are that the petitioner filed Suit No. 375 of 1981 in the Court of Civil Judge, Varanasi for cancellation and declaration that sale deed dated 14th September, 1979 registered on 16th October, 1979 alleged to have been executed by Rajesh Kumar Agrawal son of the petitioner in favour of defendants No. 1 and 2 in respect of half share in house No. CK-16/45-46 Sewak Ram Sadawarti Gali, Varanasi for a sum of Rs. 48,000/- is absolutely null and void and invalid and defendants No. 1 and 2 do not get any right or title of any kind in the half portion of the said house in question and information of the said fact be sent to the Registrar, Varanasi.

3. It is stated that the aforesaid suit was filed with the allegation that Rajesh Kumar Agrawal son of the petitioner had executed the sale-deed in question in favour of the defendant No. 1 Rajendra Kumar and defendant No. 2 Smt. Puspa Devi wife of Rajendra Kumar without any sale consideration allegedly for Rs. 48,000/-, therefore, it is absolutely forged, illegal and void. It was also stated in the plaint that the aforesaid house was self acquired property of petitioner’s father Late Prahlad Das and that the plaintiff petitioner and Smt. Shrimani Devi and Smt. Kamla Devi who had joined as co-plaintiffs No. 2 and 3 respectively in the suit with the petitioner, being sisters of the petitioner, were co-owners of the house in dispute, in which no partition has yet been taken place. In the said suit the vendee Sri Rajendra Kumar was impleaded as defendant No. 1 and another vendee Smt. Pushpa Devi wife of Rajendra Kumar as defendant No. 2. and Rajesh Kumar Agrawal son of the petitioner who had executed the sale deed in favour of defendants No. 1 and 2 was also impleaded as defendant No. 3. The aforesaid suit was dismissed in default vide order dated 27.4.1984. Against the said dismissal, application for setting aside the order of dismissal in default was moved under Order IX Rule 9, C.P.C. which was dismissed vide judgment and order dated 27.7.1990. Feeling aggrieved against the aforesaid order dated 27.7.1990 a misc. appeal under Order 43 Rule 1 was filed by the petitioner in the form of first appeal from order before this Court which was numbered as F.A.F.O. No. 1063 of 1990. In the said appeal Smt. Srimani Devi (plaintiff No. 2) and Smt. Kamla Devi (plaintiff No. 3) had not joined the petitioner as co-appellants reason best known to them, as such the petitioner has impleaded them as proforma respondents No. 4 and 5 respectively. The aforesaid appeal remained pending in this Court from 1990 to 1996. Subsequently on enhancement of pecuniary jurisdiction of lower Court, the said appeal was transferred and remitted back to the District Judge, Varanasi which was made over for disposal to 5th Additional District Judge, Varanasi on 1.12.1997.

4. It is stated in the writ petition that the parties appeared in the Court of 5th Additional District Judge, Varanasi in response to the notices issued for appearance. During pendency of the said appeal defendant-Rajesh Kumar Agrawal (respondent No. 3 in appeal) died on 13.7.2000 and an application for substitution of his heirs was filed on 4.9.2000, which was within time, as such the said substitution application was allowed by the Court below. Thereafter defendants No. 1 and 2 filed Paper No. 19 Kha on 22.11.2000 stating therein that Smt. Shrimani Devi, who was impleaded as proforma respondent No. 4 in the misc. appeal referred above, who was real sister of petitioner plaintiff had died in the year 1994 and the plaintiff petitioner had full knowledge of her death but no application for substitution of her heirs and legal representat