IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.442 of 2009 MOST. PARWATI KUER, W/o Late Ramji Singh @ Ram Anuj Singh, R/o Village-Kura, P.S.-Mohania, Distt.-Kaimur. Versus 1. SMT. NAULAKHI DEVI, W/o Jhuri Singh, R/o Village-Usari, P.S.- Mohania, District-Kaimur. 2. Nayanwas Devi, W/o Krishna Prasad Singh, R/o Village-Shivpur, P.S.-Bhabhua, District-Kaimur. 3. Atarwas Devi, W/o Ram Chandra Singh. 4. Ram Chandra Singh, S/o Late Bechan Singh. All R/o Village-Pipariya, P.S.-Mohania, District-Kaimur. ----------- 04. 16.12.2010 The appellant is aggrieved by the order dated 21.07.2009 passed by 5th Sub-Judge Bhabhua in Title Suit No. 57 of 1997/193 of 2009 by which the Court below has refused to implead her in place of the deceased plaintiff her alleged aunt-in-law. The counsel for the Respondents raises a preliminary objection that no Miscellaneous Appeal was maintainable since the application was rejected by the Court below under Order 1 Rule 10 C.P.C. At this point the counsel for the appellant submits that the petition was wrongly described as having been filed under Order 1 Rule 10 C.P.C. since it is not applicable in the present case and in fact it should have been meant to have been filed under Order 22 Rule 10 C.P.C. On hearing the parties it appears there is no doubt that the deceased plaintiff is the second wife of one Jhuri and it was the case of the defendants that the property of Jhuri had devolved around the daughters of 2 the first and third marriage of Jhuri whereas the plaintiff denies the third marriage. It is also an undisputed position that two probate cases have been filed, one on behalf of the present appellant and the other on behalf of one of the defendants but none of them has been decided uptill date. When the preliminary objection was raised on behalf of the defendants and it was submitted on behalf of the appellant that the application should have been described under Order 22 Rule 10 C.P.C. In my view, thus, evidently the Court below was required to consider as to whether the application was within time and as to whether the appellant could be described as a legal representative. Undisputedly, Asharfi Kuer the plaintiff died on 03.06.2006 and therefore by implication the suit has been dismissed on 03.09.2006 whereas the present application was filed on 10.08.2007 much beyond the stipulated time. The Court below also considered that in absence of the will having been probated the appellant could not be treated as a legal representative. On both these issues, I am not in disagreement with the Court below. For these reasons the appeal is dismissed. Vikash/- (Anjana Prakash, J.)