IMPORTANT POINT
Notwithstanding dismissal of appeal, which only resulted in taking away petitioners’ right to prosecute appeal, but certainly did not take away right to defend the suit on merits.

Abhay Manohar Sapre, C.J.—This is a civil revision filed by the legal representatives of defendant No. 7 (late Tajmul Ali Laskar) under Section 115 of C. P. Code against the order dated 14.7.2011 passed by Additional District Judge, Cacher (Silchar) in TA No. 36 of 2006 and also against the order dated 6.3.2013 passed by Munsiff No. 2 Cachar, Silchar in TS No. 148 of 2011.

2. Facts of the case need mention in brief to appreciate the short controversy involved in the revision.

The respondents herein filed a civil suit being TS No 106/2001 against 7 defendants for declaration of their title and for recovery of khas possession along with other ancillary reliefs over the suit lands. One Tajmul Ali Laskar was defendant (defendant No. 7) in the suit. During pendency of the suit, parties to the suit filed a compromise petition on 3.2.2004 to settle their dispute in relation to some of the suit properties and accordingly obtained compromise decree in part. However, the suit for remaining properties, which were not subject matter of compromise decree, remained pending for disposal on merits.

3. Tajmul Ali Laskar felt aggrieved of the part compromise decree passed by the trial court, filed first appeal before the Additional District Judge, Cacher (Silchar) being TA 36 of 2006. During pendency of this appeal, Tajmul Ali Laskar died on 17.4.2009. The petitioners of this revision claiming to be the legal representatives of late Tajmul Ali Laskar filed an application under Order 22 Rule 3 of Code of Civil Procedure for substitution of their names in the appeal in place of appellant (Tajmul Ali Laskar). It is this application, which was dismissed by the appellate court on the ground that since the application for substitution was filed beyond the period of 90 days from the date of death of Tajmul Ali Laskar and hence the appeal stood abated. The appellate court therefore dismissed the appeal as having abated on 14.7.2011.

4. The petitioners then filed another application under Order 1 Rule 10(2) ibid before the Munsiff No. 2 in a pending title suit No.148/2011 for becoming party defendants in place of deceased Tajmul Ali Laskar (defendant No. 7) in the suit. This application was dismissed by the Munsiff No. 2 by order dated 6.9.2013 on the ground that since the appellate court by order dated 14.7.2011 has dismissed the petitioner’s application for becoming party in the appeal (TA 36/2006) and dismissed the appeal as abated, the application filed under Order 1 Rule 10 ibid in the title suit has to be dismissed.

5. The petitioners felt aggrieved of these two orders i.e. the order dated 14.7.2011 passed by Additional District Judge in TA 36/2006 and order dated 6.9.2013 passed by Munsiff No. 2 in pending title suit has filed this revision petition.

6. Heard Mr. MH Rajbarbhuiyan, learned counsel for the petitioners and Mr. BK Purkayastha, learned counsel for the respondents.

7. Having heard the learned counsel for the parties and on perusal of the record of the case, I am constrained to allow the revision and while setting aside of both the orders issue necessary directions for ensuring compliance for deciding the appeal and the title suit.

8. At the outset, I consider it proper to clarify the legal position, arising in this case, which unfortunately was not noticed first by the two courts below and second by the petitioners while taking recourse to the legal remedies.

9. In the first place, the petitioners should not have filed one revision against two orders passed by two different courts appellate court in appeal and by the Munsiff in title suit. In other words, the petitioners as per rules could file only one revision challenging one order. Secondly, the right to challenge the order dated 14.7.2011 accrued to petitioners no sooner it was passed but they did not challenge the order immediately and waited for 3 years. Thirdly, no revision is maintainable against the order dismissing the first appeal as abated. Such order is appealable under