Per : MR. J. B. PARDIWALA, J. : - - (1.)The appellant seeks to challenge order dated 22.7.2011 passed by learned Single Judge in CA No. 4706 of 2011 preferred under the provisions of Order 22, Rule 4A of CPC and the consequent order passed by learned Single Judge on the same day i.e. 22.7.2011 in F.A No. 58 of 1987, declaring First Appeal No. 58 of 1987 as abetted on the demise of the original appellant.
(2.)The facts relevant for the purpose of deciding this appeal can be summarised as under : -
2.1 One Ramsarandasji Guru Suryaprakasdasji preferred Civil Suit No. 2385 of 1980 in the City Civil Court at Ahmedabad, seeking order on the basis of a Will under the Succession Act. However, the Civil Suit No. 2385 of 1980 came to be dismissed. Aggrieved by the judgment and order passed by the Civil Court dismissing Civil Suit No. 2385 of 1980, original plaintiff late Ramsarandasji preferred F.A No. 58 of 1987 in this Court under Section 299 of Indian Succession Act. Record reveals that during the pendency of F.A No. 58 of 1987, original appellant - plaintiff Ramsarandasji passed away. The appellant herein therefore, preferred Civil Application No. 7784 of 2007 with a prayer to implead him as party to F.A No. 58 of 1987, being legal representative of late Ramsarandasji. It appears that CA No. 7784 of 2007 came to be disposed of by learned Single Judge, directing the trial Court to decide an issue whether appellant herein is a legal representative of deceased Ramsarandasji, and whether he can be permitted to continue the First Appeal as a legal representative. The relevant paras of learned Single Judge's judgment dated 21.3.2009 in CA No. 7784 of 2007 are reproduced below : -

"6. Therefore, according to my opinion, in such circumstances, determination of question as to legal where has been arise whether person is or is not legal representative of deceased appellant or deceased defendant such question shall be determined by Court. This Court is having power under order 22 Rule 5 which is quoted as under : -

"5. Determination of question as to legal representative : - Where a question arise as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: -

Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return records together with evidence, if any recorded at such trial, its finding and reason therefor, and the Appellate Court may take the same into consideration in determining the question."

7. In view of aforesaid order 22 Rule 5 as appellant Court is having power to direct sub -ordinate Court to try question and to return records together with evidence, if any recorded at such trial, its finding and reason. Considering aforesaid provision, it is directed to City Civil Court, Ahmedabad to decide question whether applicant is legal representative of deceased appellant or not or whether he is entitled to represent estate or not? and to decide it in respect to subject matter means property in question after giving reasonable opportunity of hearing to both parties and to pass appropriate reasoned order in accordance with law within a period of three months from date of said order. The Trial Court, City Civil Court, Ahmedabad has to returned the papers of civil application to this Court after giving finding on issue which has been raised by applicant."

2.2 It appears that pursuant to the directions issued by this Court to decide the issue after leading evidence, trial Court passed an order dated 3.12.2010, holding that the appellant herein has failed to establish that he is a legal heir or representative of deceased Ramsarandasji in respect of property involved in F.A No. 58 of 1987.
Record reveals that this order passed by the City Civil Court, Ahmedabad dated 3.12.2010 has not been challenged and the same has attained finality.
2.3 However, appellant herein preferred Civil application No. 4706 of 2011 under Section 146, 151, Order 22, Rule 10 and Order 22, Rule 4A of the Civil Procedure Code, praying that he may be permitted to continue the First Appeal No. 58 of 1987 as the original appellant late Ramsarandasji was a saint and had left behind only disciples. Appellant herein claims to be one of his disciples who would like to protect the interest of late Ramsarandasji in the property in question.

2.4 Learned Single Judge took notice of the earlier order passed by learned Single Judge dated 31.3.2009 disposing of Civil Application No. 7784 of 2011 and also order dated 3.12.2010 passed by City Civil Court, Ahmedabad and came to the conclusion that the appellant herein is not entitled to any discretionary relief under Order 22 Rule 4A of CPC. Learned Single Judge also took the view that the original Suit is also dismissed and therefore, it would not be appropriate to adjudicate the matter which already stood abetted. Learned Single Judge therefore, passed an order in F.A No. 58 of 1987 as under : - "Since the appellant has expired, this First Appeal stands abated."

(3.)We have heard learned Counsel Mr. Mehul Suresh Shah, appearing for the appellant. He would submit that the learned Single Judge has failed to consider the order at Annexure "A" and in disregard of it, order at Annexure "D" is passed. He would submit that learned Single Judge has erred in rejecting C.A No. 4706 of 2011 simply because respondent opposed the same, without deciding the merits of CA No. 4706 of 2011 and the law applicable in this regard. He submitted that the learned Single Judge has ignored the judgment rendered by learned Single Judge of this Court in SCA No. 17831 of 2003, allowing the appellant to represent the estate of the original appellant late Ramsarandasji, in another Suit against tenants in the suit property instituted by the respondents.