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2011 DIGILAW 1023 (HP)

Ashwani Kumar v. Charanjit Singh

2011-03-08

V.K.AHUJA

body2011
JUDGMENT V.K. Ahuja, J. The present petition has been filed against the order passed by the learned District Judge in Civil Misc. Appeal No. 60 of 2009, dated 18.9.2009. By the said order, the learned District Judge had allowed the appeal filed under Order 43 Rule 1 C.P.C. against the order passed by the learned Civil Judge (Jr. Division), Court No. II, Amb, dated 23.5.2009, dismissing the application for the grant of an injunction. 2. During the course of hearing before this Court, the learned counsel for the appellant has submitted that he has filed an application under Section 151 C.P.C. for appropriate orders since the order passed by the learned District Judge was against a dead person, namely, respondent No. 1 Dev Raj before the learned District Judge, who was already dead on the date when the order was passed by the learned District Judge. A copy of the death certificate filed in the case with the application shows that respondent No. 1 had died on 26.7.2009. Therefore, in view of the fact that respondent No. 1 was already dead on the date, when the impugned order was passed by the learned District Judge. The question of bringing on record his L.Rs has to be decided by the Court, where the lis was pending on the date of the death of the respondent, as has been held by this Court in various cases. I may make a reference in one of the cases, i.e. in Jagan Nath and others Vs. Smt. Ishwari Devi, 1988(2) Sim. L.C. 273. 3. In view of the above decision, which applies to the present case also, the petition is allowed and the impugned order passed by the learned District Judge is set aside. The case shall go back to the learned District Judge, who shall decide the appeal afresh filed under Order 43 Rule 1 C.P.C. after entertaining the application that may be filed by the respondents before him in the appeal within four weeks from the date fixed, failing which, no further time shall be given. He will decide the application and decide the appeal afresh under Order 43 Rule 1 C.P.C. against the order passed by the trial Court. A copy of the judgment alongwith record, if any, be returned to the Court of learned District Judge. He will decide the application and decide the appeal afresh under Order 43 Rule 1 C.P.C. against the order passed by the trial Court. A copy of the judgment alongwith record, if any, be returned to the Court of learned District Judge. Parties through their learned counsel are directed to appear before the said Court on 7th April, 2011. 4. In view of the above terms, the petition stands disposed of, so also the pending application(s), if any.