Sn@I@ Bench IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR CIVIL REVISION N0. ^Q /2006 REVISIONERS DEFENDATNS ./^' ^y/< ^y 1) Smt. Asha Rana, wife of late Uinesh Singh Rana, aged about 46 years, 2) Pushpendra Singh Rana, S/o late Umesh Singh Rana, aged about 25 years, 3) Ku. Priya Singh Rana, D/o late Uinesh Singh Rana, aged about 24 years, 4) Ku. Pooja Singh Rana, D/o late Umesh Singh Rana, aged about 24 years, 5) Ku. Pragya Singh, D/o late Umesh Singh Rana, aged about 18 years, All are R/o Sadar Road Ambikapur, police station Anibikapur, Tahsil and District Ambikapur (C.G.) Versus RESPONDENTS PLAINTIFF 1) Rukhmani Devi, wife of ^' Fotelal, aged about 49 DEFENDANTS ^' years, occupation Cultivator, R/o Village Darima, Tahsil Ambikapur, Distt. Surguja, (C.G.) 2) Registrar, Cooperative Societies, Govt. of Chhattisgarh, Raipur, C.G. District Cooperative Land Development Bank Maryadit, through the Manager, Basantlal Road, Ainbikapur, Distt. Surgjua, C.G. 4) Sales Officer, Land Developinent ^' Bank Maryadit, Arabikapur, Surguja (C.G.) 5) Rain S/o Mungeshwar, aged akiyuit 23 years, 6) Kutteram, S/o Mungeshwar aged about21 years, Both No.5 and 6 are R/o Village Darima, Tahsil Ainbikapur, Distt. Surguja (C.G.) 7), Bahadur S/o Mux^gshw^ir aged ^' • • about 28 years, 8) Kenda, S/o Mungeshwar, aged €' about 26 years, Both No. 7 & 8 are R/o Koriya Block Colliery, West Chirimiri, Tahsil Manendragarh, Distt. Koriya, C.G. 9) Rasnath, S/o Jakki Nai, aged ^ about 45 years, R/o village Darima, Tahsil Ainbikapur, Distt. Surguja, C.G. Vishnu S/o Sitarara, aged about 22 years, R/o Koriya Colliery Chiriiniri, Tahsil Baikunthpur, Distt. Koriya, C.G. L) Ku. Guddi D/o Sadam, aged about 7 years, niinor through guardian respondent No.5, R/o village Dariina Tahsil Arabikapur, Distt. Surguja, C.G. CIVIL REVISION UNDERSECTION 115 OFTHECODEOF _^L._-_- CIVIL PROCEDURE w- XI-HC-78 *ii*ic»ia>m^ \3T^^iqi^^hh^^i^^c61^>l[< ,^..^:...^^...............£ 3n^T^Tf5trlJc|» Wff 311^11fl»*liq3 3Ti^rlRra? (^fgsi^) W^^00(o 02.05.2006 Shri A.K.Shukia, learil Heard on admission. The applicants/defer Section 115 of the Code 31.12.2005 passed by tearrj. 09/04 aliowingthe appeal o^ 08.09.1998 passed by !earn| No. 4-A/98 where.by suit of Soie piajntiiy defendants for sdeciaration the suit defendant No. 5 M| substitution of the deceaset 30.04.1998 under Order 22| bringing iegal i?ieirs on rec^ 8.09.1998 rejected the said| beyond 90 days. Against| appeal under Drder 43 Ri] plaintjffs and tHe Jearned Di| appeal and setaside the o| Hence, the appiicants/def| against the above order. <pi<<To<nn *ii*iof^f fe^5i|!(5i^N\ ed counsel for the appiicants. |dants have pi^ferred^ this revision under [of Civil Procedure against the order dated |ed District Judge, Sarguja in Civil Appea! No. theplaintiffs and setting aside the order dated ^d Civi! Judge, CIass"!, Ambikapur in Civii Suit ie plaintiffs was dismissed as abated. namely |Rukmani pukmani Devi had fiied a civi! suit against the md perpetuai injunction. During pendency of mgeswar died on 10.01.1998. Appiication for i/defendant No. 5 was fi!ed by-the piaintiff on IRute 4 read with SectiQn 151 of the C.P.C. for rd. The iearned Civil Judge vide order dated appiication on the ground that it has been filed the order of the tria! Judge a mlscellaneous !e 1 (k) of the C.P.C. was preferred by the strict Judge bythe impugned order aliowed the der ofabatement as against defendant No. 5. mdants have preferred the instant revi'sion XI-HC-78 *n*f0Tfl»*ii<i» ^3W| *<qisq ICT<1^W^13t1<1<?, I^WIII^ _,_ c^- Go ^^^w% ^n^^TwKyiJc^ WJT3H^T^lli4» ^ ... / 1 ||INU*""-"IT/ a;n^5T^RRP(^ciIyi<g^ B^TCR^iRaOT^ST ^ ^ <Rl<4t<p)4ll HPT^F^f f^^^i^^-^Jhi ^3rf^H3?T^^T ' Learned counsel for the (applicants submits that appea! before the iearned District Judge was itse|f not competent as no appeal iies against tlie order of rejection of applia and the impugned order-is wi perusal of the application prefei heirs of defendant Mo.5 on reco the abatement was made in absence of speclfic prayer foi cannot be treated as an order ui !t is further argued that District Judge is cn mtt Court reported in ^2903 A!R Dalsaoaar Singh and ofhers ^ i have heard learned COL| it Is settied iaw that wher) the lega! helrs on record withoi^ abatement may in substance abatement when such appila ensued. Thls aspect has bee^ Mithailal Daisangarj Singh (su| learned District Juige whiie dispute that if the appiication bringing iega! representative ttion under Order 22 Rule 4 of the C.P.C. thout jurisdiction. It isjargued that from |red by the applicants for bringing the legai |"d it is dear that no prayer for setting aside [he sald application.and therefore In the setting aside the abatement, the order nder0rder22 Ruie9oftheC.P.C. :he impugned order passed by the learned .reading of the judgment of the Supreme SCW 4878 in the matter of aVSithallai 's, Annabai Devram KjnJ.andothers. nsel for the applicants. e a party prefers an appijcation for bringing specificaliy praying for setting aside of an )e' construed as a pr.ayer for.setting aside tion'is preferred after'the abatement has etaborately dealt with in the judgment of )ra) which has been reiied upon by the assing the impugned order. !t is not in jnder Order 22 Ruie 9<of the C.P.C. for of the'deceased is rejected, then J ^ tillHrtl ^TW ^ETT<II«I««,uiTTlwi<»,Romy C-^- <^o , ant^TwRnw g^TOT^^TSRT^ ./' ^ [<^^ 31T^STTl3I^ (<jcil^ci<s) ^200C ?TSTTW7^i(Sa 30^^T -A - miscejlaneous under w^io^T Hl^cff^F I^Mrt xRiT^i^ ^3Tf^3T^fT^^T IGrder 43 Ruie 1 .is .maintainabie, ·therefo.re,'the arguments advat|ced by learned counse! for the.appiicant that the vvas not maintais|iabie, cannot be accepted. . it is'also iaw that the dismissa! consequent upo| Iibera!!y. !n the instant case fror| d.1ed on 10.01.1998 v/hereas aj| was filed on 30.04.1998 i..e. w| movinganappilcationunderO^ !n the aforesaid circumj opinion that there is no ilS©gal| iearned District Judge .in ;the e| interference is calied-.for by thj revislon being devoid of any s| motion stage itself and It is aca^ )rayer forsetting aside th.e abaternent and a.n abaternent, have to be ..consldered i.the facts it appears.that defe.ndant.No. 5 'piicatJon for substitution of his l.ega! heirs ;hln the peripd of iimitation prescribed for ler22Rule9oftheC.P.C. rtances, this Court is of.the considered ty'i.n the impugned.order passed by the [ercise of his'jurisdictlon and as, such no s Court in the revisional jurisdiction. The jbstance is liabie to be dlsmissed at the 'din'giy dismissed'. , •• —•—- Sd/- Dhirendra Mishra Judge SP/FS/2005-20,000 -^ &S,v" r