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2023 DIGILAW 411 (PAT)

Bhagirathi Devi v. Santosh Kumar Tekriwal

2023-04-04

KHATIM REZA

body2023
ORDER Re: I.A. No. 03 of 2023 This interlocutory application has been filed for substituting the heirs of appellant no. 1, namely, Bhagirathi Devi who died on 08.08.2018 leaving behind her heirs and legal representatives whose details are mentioned in paragraph no. 2 of the instant interlocutory application. 2. Learned counsel for the appellants submits that earlier the appeal was dismissed for default for non-prosecution of the case and a restoration application bearing M.J.C. No. 1037 of 2015 was filed and during the pendency of the aforesaid M.J.C., appellant no. 1, Bhagirathi Devi died and a petition for substitution of her heirs was filed in the M.J.C. application which was allowed vide order dated 31.01.2023 and present appeal was restored to its original file. 3. Learned counsel for the appellants submits that sons of deceased appellant no. 1 is already on record as appellant nos. 2 to 5 only her three daughters are required to be added as appellant nos. 11 to 13. 4. Learned counsel for the appellants also submits that duly executed vakalatnama is prayed to be filed on behalf of daughters within four weeks because they are residing outside their native place. Learned counsel for the respondent no. 1 had also opposed the substitution filed in M.J.C. No. 1037 of 2015. Despite his objection the substitution petition was allowed. 5. Learned counsel for the respondents further submits that present appellant no. 2 had filed the affidavit in substitution petition in title appeal that Late Dr. Ram Govind Prasad had only five heirs who are appellants in the present Second Appeal and by way of present substitution petition appellants are stating that Bhagirathi Devi wife of Late Ram Govind Prasad had four sons and three daughters hence, it is clear that one of the affidavit is false and it is strong possibility that the present affidavit filed with the present application may be false and it is well established by the Apex Court that filing of false affidavit is itself a criminal contempt. 6. Learned counsel for the appellants further submits that a decision has been made in a case of Suraj Mandar vs. Dev Mishra reported in AIR 1984 (Patna) 378 wherein the Apex Court has held that the substitution petition in restoration proceeding itself would be deemed to be sufficient enough, for the continuance of the suit against the substituted heirs. 6. Learned counsel for the appellants further submits that a decision has been made in a case of Suraj Mandar vs. Dev Mishra reported in AIR 1984 (Patna) 378 wherein the Apex Court has held that the substitution petition in restoration proceeding itself would be deemed to be sufficient enough, for the continuance of the suit against the substituted heirs. Further held that once substitution is effected in connected restoration proceeding and the suit is restored, such a suit shall proceed against the substituted heirs as well. There is no need of further substitution of the heirs of deceased in the restored suit. 7. In the aforesaid facts and circumstances and in view of decision of the Hon'ble Patna High Court the I.A. No. 03 of 2023 is allowed. 8. The office is directed to delete the name of appellant no. 1 and substitute the name of her heirs (three daughters) in her place subject to filing of the duly executed vakalatnama on behalf of newly added daughters within four weeks. List this appeal on 02.05.2023. Re: I.A. No. 02 of 2023 9. This interlocutory application has been filed under Order 1 Rule 10 read with Section 151 of the Civil Procedure Code for impleading him as intervenor-respondent in the instant case whose details are mentioned in paragraph no. 1 of the instant interlocutory application. 10. Learned counsel for the intervenor submits that the Execution Case No. 04 of 2011 has been filed by the respondents. The person named in paragraph no. 1 of this interlocutory application has been impleaded vide order dated 25.01.2019 in the Execution Case No. 04 of 2011 and his name has also been incorporated in the petition of the Execution Case No. 04 of 2011 because he is purchaser pendente lite. Learned counsel for the appellants has no objection with regard to the impleadment. In the aforesaid facts and circumstances, I.A. No. 02 of 2023 is allowed. 11. The office is directed to implead intervenorrespondent whose details are mentioned in paragraph no. 1 of the interlocutory application as respondent no. 11. Re: I.A. No. 01 of 2023 This interlocutory application shall be considered at the time of Admission of the Second Appeal.