- (1.) The only question that arises for consideration in this appeal is whether in the facts and circumstances of the case the High court was justified in abating the second appeal for non-impicadment of some of the heirs of the deceased respondent.
(2.) Yasccn Khan, one of the respondents expired. An application was filed for bringing on record his widow, six sons and four daughters. Since the sons were already on record notices were issued to the widow and the daughters only. The notices could not be served, Consequently inc appeal was dismissed for non-prosecution. An application filed by the appellant for recall of the order was also dismissed. The appellant made another effort by filing an application together with notices and process fees. This application was also dismissed. Against this order the appellant filed a special leave petition which was disposed of with the following observation: "We have vended from the record that the order dated 2/11/1984, related to notice in the substitution matter yaseen Khan was one of the respondents in the appeal-The High court seems to have dismissed the entire appeal by mistake for non-compliance of the order in the substitution matter. We, therefore, vacate that order. The order of the High court will be confined to the dismissal of the substitution petition and the second appeal shall now be placed before the High court for decision as to whether the appeal could be continued without substitution"
(3.) When the appeal was taken up again in pursuance of the order passed by this court the High court held that since no effective decree could be passed in the absence of legal heirs of Yaseen Khan who were not brought on record the appeal was liable to be abated;