IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.250 of 2009 1.CHANKI DEVI wife of Late Khutru Manjhi @ Kutru Manjhi 2.Sudama Devi wife of Basudev Manjhi and daughter of Khutru Manjhi. Both residents of village-Kalyanpur, Police Station-Jamui, District- Jamui …… …… Petitioners-appellants Versus 1.DORHO MANJHI @ HORO MANJHI son of Lulha Manjhi 2.Borhan Manjhi son of Bisho Manjhi, All resident of village-Kalyanpur, Police Station-Jamui, District- Jamui. ……. …..Opposite Parties-Respondents ----------- 7. 8.4.2011. Heard learned counsel for the parties. This appeal under Order 43 Rule 1(d) of the Code of Civil Procedure has been preferred against the order dated 9.2.2009 passed by Mr. Jagarnath Roy, Additional Sessions Judge, F.T.C.-II, Jamui, in Miscellaneous Case No.1 of 2007. Initially, a suit for eviction was filed by the husband of respondent no.1 and one another vide Title Suit No.6 of 1984. The suit was decreed on 14.9.1990 in favour of the plaintiff. After the suit was decreed, the husband of the appellant preferred an appeal vide Title Appeal No.17 of 1990. The said appeal was admitted and it was pending. During the pendency of the appeal, original appellant died on 12.12.2003. It has been stated that conducting lawyer of the appellant also died on 30.3.2004. Since the appeal went unattended, on 23.4.2004 Title Appeal No.17 of 1990 stood dismissed due to non-prosecution. Learned counsel for the appellants, while pressing the present appeal, has argued that appellant no.1, wife of original 2 appellant and appellant no.2, daughter of original appellant came to know regarding dismissal of the appeal only after initiation of the execution proceeding i.e. Execution Case No.3 of 2006. After noticing the fact regarding initiation of execution case, the appellants got the record inspected on 6.1.2007 and within thirty days a miscellaneous case for restoration of Title Appeal No.17 of 1990 was filed vide Misc. Case No.1 of 2007 on 25.1.2007. In the miscellaneous case the parties adduced their evidences and finally by order dated 9.2.2009 the learned court below rejected the petition for restoration. It was submitted by learned counsel for the appellants that there was bona fide mistake on the part of the appellants. Since the husband of appellant no.1 died and conducting lawyer also died, the rejection order remained unnoticed and immediately after noticing the same, a miscellaneous case was filed for restoring Title Appeal No.17 of 1990. It has further been submitted that conduct of the respondents further suggests that the respondents were also not very serious regarding execution and due to that reason execution case was filed on 31.8.2006 in a suit which was decreed long back in the year 1990 and, that too, after rejection of Title Appeal No.17 of 1990 which stood dismissed on 23.4.2004. Learned counsel for the respondents has forcefully opposed the prayer of the appellants. It was submitted that Title Appeal No.17 of 1990 was purposely filed to refrain the respondents from enjoying the suit property. It was also argued that the suit for eviction was filed in the year 1984 and till date matter is still pending and, as such, it has been prayed to reject the appeal. 3 After hearing the parties and perusing the materials available on the record, the court is of the opinion that Title Appeal No.17 of 1990 was dismissed in default due to the reason that the appellant and also his conducting lawyer died. The court feels that once title appeal was admitted, on such ground final hearing in title appeal may not be defeated by rejecting the appeal in default. In the facts and circumstances, as indicated above, the court is of the opinion that the order dated 9.2.2009 is to be quashed and it is, accordingly, quashed. The Title Appeal No.17 of 1990 is directed to be restored to its original file. Keeping in view the fact that Title Appeal No.17 of 1990 relates to a suit for eviction, which was filed in the year 1984, it is desirable to direct the appellate court to expedite the hearing of the appeal and dispose it of preferable within a period of four months from the date of receipt/production of a copy of this order. With the above observation and direction, the appeal stands allowed. Md.S. ( Rakesh Kumar, J.)