Jyotirmay Bhattacharya, J. - (1.) Leave is granted to the learned advocate-onrecord of the appellants to correct the date of the judgement in the memorandum of appeal in the light of the report of the Stamp Reporter. The instant second appeal is directed against the judgement and preliminary decree dated 8th July, 2016 passed by the learned Additional District Judge, 2nd Court, Malda in Partition Appeal No. 02 of 2014 affirming the judgement and preliminary decree dated 30th November, 2013 passed by the learned Civil Judge (Senior Division), Malda in Partition Suit No. 76 of 1999 at the instance of the defendants/appellants.
(2.) This is a defective appeal. Defects are notified in the report of the Stamp Reporter. It appears from the report of the Stamp Reporter that one of the appellants before the learned first Appellate Court died after the judgement was delivered by the learned first Appellate Court. The legal representatives of the said appellant have been impleaded as appellant nos. 28(a) to 28(f) in the present memorandum of appeal. It is also mentioned in the said report that no application seeking leave to prefer this appeal by those legal representatives of the said appellant, since deceased, has been taken out by the appellants. For rectifying the said defect, the appellants have taken out an application being CAN 12127 of 2016 seeking leave to present this appeal by the legal representatives of the said appellant, since deceased, along with the other appellants.
(3.) On perusal of the said application, it appears that Majul Kha, the defendant no.15/appellant no.28 before the learned first Appellate Court died 27th May, 2016. Hearing of the first appeal was concluded before the learned first Appellate Court on 17th June, 2016. The judgement was delivered by the learned first Appellate Court on 8th July, 2016. Death of the said Majul Kha, the defendant no.15/appellant no.28 was not brought to the notice of the learned first Appellate Court. No prayer was made either by the surviving appellants or by the legal representatives of the deceased appellant for substituting the legal representatives of the said deceased appellant on record by way of substitution in the place of the said deceased appellant. Thus, the estate of the deceased appellant no.28 remained unrepresented before the learned first Appellate Court. The first appeal is, thus, not saved as per the provision of Order 22 Rule 6 of the Code of Civil Procedure.;