The High Court held that the order of the lower appellate court allowing the substitution of legal representatives was correct and that the stay order passed by the High Court in the Misc. Appeal did not bar the plaintiff from filing an application for substitution of legal representatives.

Dipak Misra, J.

1. Invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India the defendants-petitioners have prayed for issue of writ of certiorart for quashment of the order dated 15-2- 1985 passed by the learned Second Additional District Judge, Raigarh.

2. The facts which are essential for disposal of the present writ petition are that the non-applicants respondents filed civil suit No. 13-A/67 for possession of the land situate in Kh. No. 340 and 350 in Village Baisi Colony, measuring 7 acres. In the said suit Kalashashi Biswas, the husband of the petitioner No. 1 and father of the petitioner Nos. 2, 4, 6, 7 and 8 and a relative of other petitioners, was arrayed as the sole defendant. The said suit was decided in favour of the plaintiff by judgment and decree dated 20-7-1972 and possession was directed to be given to the plaintiff.

3. Assailing the aforesaid judgment and decree Kalashashi Biswas, the defendant therein, preferred an appeal forming the subject-matter of Civil Appeal No. 36-A/72 whereby the lower Appellate Court set aside the judgment and decree passed by the Trial Court and remanded the matter for fresh trial. The aforesaid order of remand was impugned by the plaintiffs in M. A. No. 229/73 before this Court. During the pendency of the Misc. Appeal, Kalashashi Biswas expired on 10-10-1975. Steps were not taken for his substitution within time and after lapse of some time applications were filed to bring his legal representatives on record. It is worth-noting here that during the pendency of the said Misc. Appeal, Kalipada Biswas had moved an application under Order 32 Rule 12 of the Civil Procedure Code (hereinafter referred to as 'the Code') read with Section 151 seeking permissions to continue the suit in his own name as he has attained majority during the pendency of the proceedings. As the application for substitution was opposed, this Court by order dated 5-12-1977 held that as no proper steps had been taken for bringing the legal representatives on record the appeal stood abated and accordingly dismissed the said appeal.

4. After dismissal of the said Misc. Appeal, the plaintiff moved an application on 4-1-1978 before the trial Court for bringing the legal representatives of Kalashashi Biswas on record in the suit. It was averred in the said application that he had not moved the application for substitution in the suit as the High Court had granted stay of further proceeding by its order dated 28-9-1977 and it stood vacated only when the High Court decided the appeal on 5-12-1977. The aforesaid application was combated by the contesting defendants. The trial Court after consideration of the application dismissed the same and held that the suit had abated as the legal representatives of the defendant had not been brought on record. Correcting the soundness of the said order the plaintiff preferred an appeal and the lower Appellate Court set aside the order on the ground that the trial Court had not applied its mind and decided the case solely on the basis of the order passed by the,High Court in M. A. No. 229/93 dated 5-12-1977. Being aggrieved by the aforesaid order of remand the defendant preferred Civil Revision No. 177/80 before this Court wherein the order of the lower Appellate Court was set aside by holding that the lower Appellate Court had not properly adjudicated the appeal on merits and the matter was remanded to be reconsidered by the said Court. Thereafter, by the impugned order dated 15-2-1985 the lower Appellate Court allowed the appeal and directed the trial Court to bring the legal representatives of the defendant on record and proceed with the suit. The aforesaid order is the cause of grievance of the present petitioner.

5. Assailing the aforesaid order, Mr. P. R. Bhave, learned counsel for the petitioner has contended that this Court's order passed in M. A. No. 229/73 operates as res judicata as this Court had already held that the application