- (1.) THIS miscellaneous appeal has been filed against the order dated 11.7.2005 passed by the Additional District Judge, F.T.C., Koderma in Title Appeal No. 13 of 1989 rejecting the petition dated 24.2.2005 filed on behalf of the appellant under Order XXII Rule 3 of the Code of Civil Procedure for setting aside the order of abatement dated 24.2.2005 as well as the petition dated 24.2.2005 under Section 5 of the Limitation Act.
(2.) MR . N. K. Prasad, learned counsel for the appellants, submitted that even if some of the co - owners died and their heirs were not substituted in the appeal; the appeal in question will not abate as a right to sue to other co -owners -the appellants herein survived. He relied on the judgment of the Patna High Court in the case of Mahabir Singh and others V/s. Shayam Nandan Prasad and others (AIR 1972 Patna 304). He further submitted that at best the Title Appeal No. 13 of 1989 filed on behalf of appellant no. 3 Jagdish Modi, appellant no. 4 Bhekhlal Modi and appellant no. 10 Jiblal Modi abated and not the whole appeal. Mr. Akhtar, appearing for the State supported the impugned order. I find force in the submission of Mr. N. K. Prasad that the whole appeal will not abate, as the right to sue survives with the other coowners - the appellants herein in this appeal, namely, Chhotu Modi, Lashuman Modi, Bhagwani Modi, Ashok Modi, Mahendra Modi, Rameshwer Modi, Dashrath Modi, Ragho Modi and Damodar Modi; though the appeal filed on behalf of appellant nos. 3, 4 & 10 abated.
(3.) ACCORDINGLY , this appeal is allowed and the impugned order is set aside. The learned court below will proceed with the hearing of Title Appeal No. 13 of 1989. The parties will cooperate in early disposal of the appeal.;