1 1 S.B. CIVIL FIRST APPEAL NO.113/1998 (Madan Lal Vs. Champa Lal) Date of Order :: 16th December 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI None present for the appellant. Mr.B.K.Thanvi,for the respondent .... Civil Suit for partition (C.O.No.1/1996) as filed by the plaintiff-respondent Champa Lal arraying his brothers Mohan Lal and Bhanwar Lal as defendants came to be decreed by the Additional District Judge, Barmer with the impugned preliminary decree dated 20.02.1998 while declaring the plaintiff to be entitled to 1/3rd share in the suit property. This first appeal against the judgment and decree aforesaid as preferred by the defendants was admitted for consideration on 21.05.1998. The appellant No.1 Mohan Lal expired on 22.05.1998 and on an application moved, his legal representative Madan Lal was ordered to be substituted as appellant in his place by the order dated 07.10.1998. However, the appellant No.2 Bhanwar Lal also expired later and an application as moved for bringing his legal representatives on record was rejected by this Court on 01.09.1999 and, while holding the appeal having abated qua the said deceased appellant No.2, the question as to whether the appeal would 2 abate as a whole was left open to be examined at the time of final hearing of the appeal. On 20.07.2001, the matter was adjourned at the request of the counsel appearing for the appellant who sought time to move application for recalling of the aforesaid order dated 01.09.1999. No such application having been moved, the matter was repeated several times in the Registry. Then, the matter was adjourned by the Court on 23.03.2004 for nobody appearing for the appellant. Thereafter, on 24.08.2004, the matter was adjourned in the presence of the counsel for the appellant and the respondent. However, on 11.11.2005, this Court noticed that nobody was appearing for the appellant No.1 who was earlier represented by the counsel late Shri D.S.Shishodia. In the circumstances of the case and in the interest of justice, this Court directed notice to be issued to the appellant No.1 for his representation in the appeal. The notices so sent were received unserved twice over essentially for want of complete address of the appellant No.1. Thereafter, the matter was placed before the Court on 16.05.2008 when it was adjourned as the learned counsel Mr. Deepak Bora appearing on behalf of the appellant prayed for some time to take instructions in the matter; and thereafter, the matter was adjourned on 22.07.2008 and 25.08.2008 as nobody appeared for the parties. 3 Nobody was present on 02.09.2008 either but having regard to the circumstances, the matter was ordered to be placed along with record if received. The office has now placed the matter for orders with the record. Learned counsel Mr. B.K.Thanvi, who had been representing the respondent-plaintiff submits that to the information available with him, the sole respondent has also expired. The net position available in the present matter, therefore, is that this appeal has already abated qua the appellant No.2 and then, for the sole respondent having expired and no substitution having been made in his relation, the appeal has abated as a whole. In the aforesaid view of the matter, there appears no reason or purpose that the appeal be kept pending while sending repeat notices to the substituted appellant No.1 The appeal having abated, be consigned to record as such. The record of the Trial Court be returned forthwith. (DINESH MAHESHWARI), J. s.soni