- (1.) The question that calls for consideration in this writ petition is as to whether on the death of one of appellant would the appeal abate in case it is found that the other appellants have distinct, separate and independent right of their own even if there was a joint decree passed by the Trial Court against them.
(2.) In order to appreciate this controversy certain facts are required to be noted: A suit for permanent prohibitory injunction was filed by the plaintiffs-petitioners against the present defendants-respondents in respect of Plot No. 17, measuring area 2 biswa and 5 dhoor before the Munsif, West, Allahabad. Trial Court passed the decree in favour of plaintiffs-petitioners against which an appeal was preferred before the Addl. District Judge, Allahabad. During pendency of the appeal one of the appellant Sudama died in the year 1989 and no application for substitution was filed either by appellants or by the respondents. An application was filed by one Smt Imarti Devi for substitution along with an application under Section 5 of the Limitation Act for condoning the delay and after hearing the parties the Court dismissed the application and directed that the appeal would abate in so far as the deceased Sudama was concerned, however, the appeal was allowed to proceed in so far as other appellants are concerned. An application was filed by the present petitioners on 10.1.2005 that the appeal as a whole has to abate. Appellate Court after hearing the parties dismissed the application and directed that the appeal would not abate so far as other appellants are concerned. It is this order which is subject matter of challenge before this Court.
(3.) In order to appreciate the legal position it shall be relevant to mention the nature and character of the suit.;