NISAPATI Vs. GYATRI

JUDGEMENT

(1.) The petitioner has come up in revision against the order dated 21-12-1978 recorded by the Additional District Judge, Mandi on an application purporting to have been made under Order XXII, Rule 4 read with Section 151 of the Code of Civil Procedure on behalf of the respondents.

(2.) The facts which have given rise to this revision petition are not very much in dispute. The present petitioner Nisapatti brought a suit in the Court of Subordinate Judge, Mandi against his brother Lekh Raj and his mother Smt. Achhri for a declaration that certain property as detailed in the suit was ancestral in nature in which all the three parties named above had equal share and that the same was liable for partition in accordance with such shares. Shri Lekh Raj the brother of the petitioner contested the suit claiming that he was the exclusive owner of the property in question as it was his self acquired property. Smt. Achhri the mother of the petitioner did not contest. Shri Lekh Raj expired during the pendency of the suit and the present respondents were impleaded as his legal representatives. The suit was ultimately decreed in favour of the petitioner-plaintiff.

(3.) The respondents then preferred an appeal against the judgment and decree of the trial Court which was assigned for disposal of the Addl. District Judge, Mandi. During the pendency of that appeal Smt. Achhri the mother of the petitioner and who had been impleaded as respondent No. 2 in the appeal expired. After the death of Smt. Achhri, the respondents who were the appellants before the Additional District Judge made an application purporting to be under Order XXII, Rule 4 read with Section 151, C.P.C. praying that the name of Smt. Achhri respondent be struck off from the appeal in order to proceed further with the case. It was alleged by the respondents in their application that Smt. Achhri respondent had left no other heir except the parties to the litigation and as such her name needed to be struck off.