- (1.) This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 22.09.2015 passed by Civil Judge (Sr. Division-I), Bokaro in Title Partition Suit No.22 of 2002, whereby and whereunder the petition filed under Order XXII Rule 4 read with Section 151 of the Code of Civil Procedure has been rejected.
(2.) The brief fact of the case as per the pleading made in the writ petition is that a partition suit has been filed by original plaintiff for partition in the suit property amongst the co-sharer. The same has been allowed vide judgment dated 30.04.2014 against which appeal has been preferred being Title Appeal No.15 of 2014 by the respondents/defendants which was disposed of by setting aside the judgment dated 30.04.2014 and the decree dated 13.05.2014 passed in Title Suit No.22 of 2002 and remanded the suit to the trial court for retrial of the suit for the reason that an application for substitution has been filed before the appellate court, and therefore, while remitting the matter before the trial court for de novo the trial as also by considering the substitution petition. The petitioner has filed petition under Order XXII Rule 4 of the C.P.C read with Section 151 of the C.P.C for substitution of defendant no.3 and deletion of Samaresh Manji who died issueless but the said petition has been dismissed, against which the present writ petition has been filed.
(3.) Mr. Sanjeev Thakur, learned counsel for the petitioner has submitted that since the suit pertains to the landed property in question in which the decree of partition has been passed in between the coparceners but after decree has been passed by the trial court the defendant no.3 was died on 09.11.2005 in course of the pendency of the trial but the said fact has not been brought to the notice of the plaintiff and, therefore, the appropriate application has not been filed at the appropriate stage in pursuance to the provision of Order XXII Rule 1 and 2 of the C.P.C, however, when the judgment and decree has been passed the legal heirs of the defendant no.3 has challenged the said decree also by filing substitution petition and the appellate court by passing a reasoned order taking into consideration the death of one of the shareholder i.e. the defendant no.3 has remitted the matter before the trial court for consideration of substitution through legal heirs and as such the said substitution petition ought to have been allowed otherwise the decree if passed by the trial court will have got no effect.;