Dhrub Narayan Upadhyay, J. - (1.) I.A. No. 867 of 2007
(2.) THIS interlocutory application has been filed under Section 151 of the Code of Civil Procedure with a prayer to substitute the legal heirs and successors of Opposite Party No. 1 -Abdul Hamid, who died on 20th September, 2006, whose names and addresses are described in Para -2 of this application. In the very said interlocutory application, in Para -3, it is contended that Petitioner No. 1 -Abdul Rahman has also died. It further transpires that I.A. No. 1339 of 2010 had been filed under Order XXII Rules 4 and 9 of the Code of Civil Procedure read with Section 5 of the Limitation Act in continuance of I.A. No. 867 of 2007. In Para -8 of I.A. No. 1339 of 2010, it is stated that I.A. No. 867 of 2007 was placed on board on 27th March, 2010 under the heading "For Orders" and during the course of argument, counsel for the petitioners sought one week's time for filing necessary application under correct provision of law, as the aforesaid I.A. No. 867 of 2007 was under Section 151 of the Code of Civil Procedure and for the said purpose one week's time was allowed by this Court.
(3.) THE opposite parties have filed common rejoinder to I.A. Nos. 867 of 2007 and 1339 of 2010, raising objection that for substituting legal heirs of parties in a civil proceeding, the provision contained under Order XXII shall be applied. Since there is specific provision in the Code of Civil Procedure, the application under Section 151 of the Code of Civil Procedure is not required to be invoked. The opposite parties have also disputed the date of death of Opposite Party No. 1 -Abdul Hamid and according to them, he died on 3rd August, 2006, leaving behind his four sons, named in Para -5 of the rejoinder. It is further stated that since petition for substitution of legal heirs of Opposite Party No. 1 has not been filed within time, the C.M.P. stood abated.;