IN THE HIGH COURT OF JUDICATURE AT PATNA ------------- Civil Review No.217 of 2007 ----------- Md. Nurul Hasnain & Ors .......................petitioners Versus Bibi Qamrul Fatima & Ors..................... Respondents ---------------------------------- 8 23-11-2011 Heard learned counsel for the parties in respect of Limitation petition ( I.A. No. 6185 of 2007) as well as on merits of Civil Review application. For the reasons mentioned in the limitation petition, particularly in view of time spent in pursuing LPA preferred against the order under review, the delay of two years and three months in filing of this Civil Review is condoned. I.A. No. 6185 of 2007 stands allowed. This review application is directed against the order dated 8-7-2005 passed in First Appeal No. 269 of 1989 whereby this Court, in the context of an office note dated 29-4-2005 proceeded to decide whether the appeal as a whole has become incompetent against the remaining respondents when it had stood dismissed against large number of respondents due to non-substitution of heirs of such respondents or for other defaults. On behalf of appellants of the First Appeal who are petitioners in this review application it has been 2 submitted that the office note dated 29-4-2005 pointed out pendency of an application under Order 22 Rules 4 and 9 of the Civil Procedure Code filed on behalf of appellants for allowing substitution in respect of deceased respondents 3,4,5,6,8,9,10,11 and 16, some of whom had died during the pendency of the matter in the court below itself. That office note also pointed out pendency of another application bearing I.A. No. 1850 of 2005 filed on behalf of appellant under section 151 of the Civil Procedure Code praying for modification of an order dated 10-6-1999. According to the office note no order was passed on the aforesaid date ie, 10.6.99 and probably the appellant wanted review of order dated 28-6-1999 which was a peremptory order and had led to dismissal of the appeal against respondent nos. 3,7,11,12,13,14 and 15 as well as deceased respondents 4,5,6,9,10 and 16 on account of non- compliance of the peremptory order. While passing order under review dated 8-7-2005 the court did not consider the two applications mentioned in the office note on account of a submission advanced on behalf of the respondents that the appeal itself had become 3 incompetent because it stood dismissed against large number of respondents. On that ground and presuming that the decree of partition was also in favour of such respondents against whom an appeal stood dismissed, this court held that the whole appeal had become incompetent against the remaining respondents. Learned counsel for the petitioner has referred to the partition decree as well as the final decree under appeal to submit that partition was to be effected only between plaintiff and defendant nos.1 to 5 and the rest defendants did not get any share in the partition decree nor any Takhta was allotted in their favour in the final decree. Only some purchasers were ordered to be accommodated in the share allotted to their vendor. Thus, it has been submitted that necessary parties for determination of the appeal are still on records and the deceased respondents or the respondent against whom the appeal stood dismissed are not necessary parties. The submissions advanced on behalf of petitioners appear to be correct. Otherwise also there were already petitions pending for recall/modification of earlier 4 order and also for making substitution which were not considered by this Court at the time of passing of the order under review. Hence, this Court is of the considered view that the matter requires further detailed consideration as to whether the applications pending and mentioned in the office note should have been considered first and thereafter only the court should have undertaken the exercise of finding out whether this appeal stands dismissed against any of the necessary parties or not. No such detailed application of mind or discussions appear from the order under review. Hence, for the aforesaid reasons, and in the interest of justice the order under review is recalled. Let the office note in question be put up again for orders so that appropriate Bench may consider the various applications on merits and may re-decide, if required, regarding the issue whether the appeal is competent and maintainable against the available respondents or not. The review application is allowed. There shall be no order as to costs. Naresh ( Shiva Kirti Singh, J.)