MONOJ RAM PHOOKAN AND ANOTHER Vs. ON THE DEATH OF ASHIMA DEVI @ GOSWAMI
HIGH COURT OF GAUHATI
Monoj Ram Phookan And Another
On The Death Of Ashima Devi @ Goswami
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PRASANTA KUMAR DEKA,J. -
(1.) Heard Mr. Sheeladitya learned counsel for the petitioner and Mr. S Dutta, learned counsel for the respondents.
(2.) The present petitioners filed Title Suit No. 335/2012 against, in total 7 numbers of defendants claiming declaration, cancellation of sale deeds, partition, recovery of possession and permanent injunction. The defendants No. 1 and 2 filed their written statement - cum - counter claim seeking declaration and partition of Schedule I land among the plaintiffs and counter claimants/defendants. The defendant No. 1 Ashima Devi alias Goswami died on 29.09.2015 during the pendency of the suit leaving behind the present respondents as her legal heirs. On the death of the said defendant No. 1/counter claimant No. 1, the present respondents as her legal heirs, filed an application on 17.12.2015 for substitution of the defendant No. 1/counter claimant. There was no objection from the plaintiffs/petitioners side nor there was any application filed for substitution of the deceased defendant No. 1 by her legal heirs, the present respondents except the one filed by the present respondents. Vide order dated 04.03.2016, the learned Civil Judge No. 2, Kamrup (M) at Guwahati allowed the legal representatives of the deceased counter claimant No. 1 to be brought on record and directed the Bench Assistant to record the same. On the other hand, learned court below held that the plaintiffs/petitioners had not taken steps to substitute the deceased defendant No. 1 and as such, the suit of the plaintiffs/petitioners abated against the deceased defendant No. 1 and directed the suit to proceed against the remaining surviving defendants.
(3.) The plaintiffs/petitioners thereafter filed an application under Section 151 of the Code of Civil Procedure (CPC) for recalling the order dated 04.03.2016 for setting aside the abatement of the suit against the legal heirs of the deceased defendant No. 1. As against the said application under Section 151 of the CPC, the present defendants/respondents filed their written objection. The learned Court below vide order dated 16.07.2016 disallowed the said application for recalling the order dated 04.03.2016 by holding that the suit abated against the deceased defendant No. 1. Being aggrieved, the present petitioners have preferred this revision application for setting aside the impugned orders dated 04.03.2016 and 16.07.2016.;
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