Hon’ble S.U. Khan, J.—Heard Sri Sudeep Harkauli and Sri P.C. Jain, learned counsel for the petitioner and Sri Ramendra Asthana, learned counsel for respondent No. 3.

2. Petitioner instituted O.S. No. 127 of 1971 against his father (defendant No. 1), uncle Awadesh Narain Singh (defendant No. 2) and nine others. The suit was for cancellation of certain sale-deeds executed by father and uncle of the petitioner. Some sale-deeds were executed in favour of defendant Nos. 7 and 8, Giriraj Singh and Shiv Nath Singh, who are respondent Nos. 2 and 3 in this writ petition. His suit was decreed in 2008. Against the said decree, both Giriraj Singh and Shiv Nath Singh filed Civil Appeal No. 158 of 2008. The appeal is pending before A.D.J. Court No. 11, Agra. In the appeal plaintiff petitioner was made respondent No. 1 and other defendants were made proforma respondents.

3. Three proforma respondents in the appeal i.e. respondent No. 3/6, respondent No. 6/2 and respondent No. 7 died in 2009-2011. No substitution application was filed. Plaintiff respondent No. 1 filed an application numbered as 40-ka praying for dismissal of the appeal as abated. Appellants respondent Nos. 2 and 3 in this writ petition filed objections stating therein that respondent No. 3 had not filed any written statement before the trial Court and his legal representatives had also not filed written statement, that legal representatives of respondent No. 6/2 were already on record as other proforma respondents in the appeal and respondent No. 7, Raghuvir Singh had already filed another appeal against the same decree of the trial Court which had been consolidated with the appeal in question.

4. The lower appellate Court rejected the objections of the petitioner and refused to abate the appeal through order dated 1.8.2012, which has been challenged through this writ petition.

5. In respect of Pradeep Kumar Rathaur, defendant No. 5/2 and respondent No. 6/2 in the appeal before the lower appellate Court, the lower appellate Court held that substitution application had been filed on 1.2.2012 showing date of his death as 4.11.2011 i.e. within time.

6. In respect of death of Smt. Rudra Bala, defendant No. 2/6 and respondent No. 3/6 in the appeal before the lower appellate Court, the lower appellate Court held that she had not filed any written statement before the trial Court hence by virtue of Order XXII Rule 4(4), C.P.C., the Court could grant exemption to the appellant from substituting her legal representatives.

7. In respect of Raghubir Singh, defendant No. 6/respondent No. 7 in the appeal before the lower appellate Court, the lower appellate Court held that he had separately filed appeal against the same decree. Raghubir Singh was also purchaser of separate property from father and uncle of the plaintiff petitioner like the respondent Nos. 2 and 3 in this writ petition. The lower appellate Court held that in respect of prayer for partition made in the plaint, respondent No. 7, Raghubir Singh was a formal party.

8. Learned counsel for the petitioner has argued that without there being any prayer exemption under Order XXII Rule 4(4), C.P.C. could not be granted. In this regard, reference had been made to Zahirul Islam v. Mohd. Usman, 2003 (1) SCC 476 and Budh Ram v. Bansi, 2010 AIR SCW 5071 : 2010 (11) SCC 476.

9. Learned counsel for respondent No. 3 has cited the following authorities of the Supreme Court to contend that on the death of proforma party, respondent appeal does not abate and in any case entire appeal cannot be dismissed as abated due to death of some respondents if cause of action/relief claimed is separate.

1. Mangal Singh v. Smt. Rattno, AIR 1967 SC 1786

2. Budh Ram v. Bansi, 2010 AIR SCW 5071 : 2010 (11) SCC 476

10. In my opinion, in view of the above authorities cited by learned counsel for petitioner the view of the lower appellate Court that even without any application exemption could be granted under Order XXII Rule 4(4), C.P.C. to the appellan