MIR DARA SHEKO,J. - (1.) In compliance with an order dated May 3, 2017 passed by this court in CO No.4098 of 2016, CAN No.5280 of 2017 has been filed for expunging name and/or substitution of heirs of the proforma opposite party no.5, who was proforma defendant no. 10 in the suit.
(2.) Heard Mr. Mukherjee representing the applicants and Mr. Rakshit appearing for the opposite party no. 1, who was the plaintiff in Title Suit No. 155 of 2010. The CO has been filed assailing Order No. 69 dated August 20, 2016 passed by learned Civil Judge (Sr. Division), Searampore rejecting the application under section 151 of the Code of Civil Procedure and allowing the application under Order 26, Rule 9 CPC.
(3.) Mr. Mukherjee relying upon an information received by exercising searching slip under serial no. 769 dated May 18, 2017 submits that since said proforma defendant no. 10 did neither appear till the stage, nor did he file written statement, and since the instant revisional application has been filed assailing an interlocutory order in the suit, whatever best efforts could have been possible the petitioners have done it by sending notice under speed post once more, pursuant to the direction of this court. Further submits, as it appears from the information supplied by Mr. Rakshit, learned counsel for the opposite party no. 1, that said proforma defendant no. 10 died on October 7,2016; and since the duty is vested upon the plaintiff for taking necessary steps for substitution or otherwise in the suit; and since it has not yet been done, his clients have no alternative but to seek an order of the court by preferring the CAN. Submits that whatever direction will be given by this court his clients would comply.;