( 1. ) RESPONDENT No. 1 instituted a suit for restoration of possession and mesne profits against one Amrit who is stated to have died on 5-2-90 his widow Sarju bai was substituted in his place who also died issueless on 16-5-93.

( 2. ) ON 25-7-96 an application under Order 22 Rule 3 of Civil procedure Code was submitted. Another application under Order 22 Rule 4 of civil Procedure Code was submitted. Both these applications were decided by the learned Trial Judge on 24-2-01. Consequently, the suit filed against Amrit was declared to have abated on account of death of Sarju Bai in an issueless condition. Simultaneously, the learned Trial Judge directed the plaintiffs to implead Mahesh Kumar and Sriram, both minor sons of Amar Singh as defendants. The order of impleadment was not given effect to. The plaintiffs challenged the order of abatement against Sarju Bai in C. R. No. 934/01, wherein amar Singh, Sriram and Mukeksh Kumar were impleaded as defendants, as revealed in the order dated 8-7-02 marked as Annexure P-3. This court vide annexure P-3 dismissed C. R. No. 934/01 for want of prosecution.

( 3. ) SINCE the order of impleadment of present petitioners was not given effect to by the plaintiffs in time, the plaintiffs/respondents submitted an application under Order 6 Rule 17 of Civil Procedure Code seeking leave to incorporate the names of the present petitioners in the cause title of the plaint. This application was dismissed by the learned Trial Judge on 22-11-00 vide annexure P-4. Simultaneously, the learned Trial Judge observed that on account of failure on the part of the plaintiffs to implead Mahesh, Sriram, both sons of Amar Singh, in the plaint, the suit was liable to be dismissed. Accordingly, the same was dismissed vide Annexure P-4.

( 4. ) THE aforesaid order was challenged in Civil Misc. Appeal No. 1/2003 which was allowed by the learned First Additional District Judge, Raisen on 1st of April, 2005 vide Annexure P-5. The present writ petition is preferred against the same by the petitioners on the ground that the appeal before the lower Appellate Court was not maintainable and the plaintiffs having failed to implead the petitioners as defendants, the order impugned is not liable to be sustained.

( 5. ) AS regards the effect of untenability before the Lower Appellate court, it may be seen that the present writ petition is under Article 227 of the constitution of India and the provision envisaged thereunder is liable to be invoked in order to avoid failure of justice. Admittedly, as observed by the learned Trial Judge in Annexure P-4 the suit of the plaintiffs was declared as abated against Amrit and simultaneously by the same order on 24-2-01, the plaintiffs were directed to implead Mahesh, Sriram, both sons of Amar Singh as defendants. The act of impleadment in such manner is ministerial act and not judicial one. The Bombay High Court in the case of H. H. Darbar Alabhai vaisurbhai and others Vs. Bhura Bhaya and others, reported as AIR 1937 bombay 401 has observed as under:-

"it is no part of the appellants duty to take the necessary steps to carry out the Courts order for the substitution of the names of the heirs of the deceased respondents who are properly served with notices, in order to correct the record of the Court in terms of its order. This is a ministerial function which the Courts establishment is charged to perform. If it is not performed or neglected, the fault will not lie with the appellant. "

( 6. ) THIS view has further been followed by Karnataka High Court in the case of Kariyappa and others Vs. Patel Rudrappa and others, reported as AIR 1976 Karnataka 29, wherein it has been observed as under:-

"it is seen therefrom that when the defendant dies and the right to sue survives the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. When once the order is made under the above provision, th