IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1868 of 2009 IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1868 of 2009 1. DILIP SHARMA @ DILIP KUMAR SHARMA. 2. LAVKUSH SHARMA. 3. BINOD SHARMA. ALL SONS OF BACHCHAN SHARMA. 4. SHYAM SHARMA, SON OF RAJENDRA SHARMA. 5. ARBIND SHARMA, SON OF JHULAN SHARMA. ALL RESIDENT OF VILLAGE-CHHATAUNI BARHAI TOLA, P.S.-CHHATAUNI, DISTRICT-EAST CHAMPARAN. ………………………………...PLAINTIFFS….PETITIONERS. Versus 1. KISHUN PRASAD YADAV @ RAM KRISHNA PRASAD YADAV, SON OF JAI NARAYAN RAI, RESIDENT OF VILLAGE + P.O.-BANKATWA, P.S. JITUA, DISTRICT- EAST CHAMPARAN. ……………DEFENDANT IST PARTY…OPPOSITE PARTY. 2. SHARDA DEVI, WIFE OF DHRUV SHARMA, RESIDENT OF VILLAGE-CHHATAUNI BARHAI TOLA, P.S. CHHATAUNI, DISTRICT-EAST CHAMPARAN. ………………DEFENDANT 2ND SET…OPPOSITE PARTY ----------- For the Petitioners : Mr. Dhurendra Kumar, Advocate Mr, Jitendra Kishore Varma, Amicus Curiae. -------- 5 26.11.2010 Heard learned counsel for the petitioners and Mr. Jitendra Kishore Varma, Amicus Curiae, on the point of maintainability of the civil revision. Office has reported in its revised stamp report that by the impugned order, the prayer of the petitioners for setting aside the abatement under Order XXII Rule 9 of the Code of Civil Procedure (hereinafter to be referred to as “the Code”) as against the deceased defendant no. 2 has 2 been refused, this civil revision would not be maintainable and proper remedy would be preferring an appeal under Order XLIII Rule 1(k) of the Code. Mr. Varma also supports the report aforesaid and places reliance upon the decisions rendered in Ram Kumar Agarwala and another v. Buxar Oil and Rice Mills Ltd. (1970 BLJR, 530), Sachida Nand Yadav & ors. V. Dinesh Yadav & ors. (1991 BBCJ, 511) as well as Amba Bai and ors. V. Gopal and ors. (AIR 2001 SC,2003(paragraph 6) to impress upon this Court that even if the suit abated in part and prayer for setting aside abatement is refused and even though the whole suit has not been not declared to have abated, the proper remedy would be an appeal under Order XLIII Rule 1(k) of the Code. Learned counsel for the petitioners also, does not contest the stamp report, however, submits that the suit valuation being Rs. 3,60,000/-, proper forum would be a Miscellaneous Appeal before this Court, and, as such, he seeks permission to convert this Civil Revision into Miscellaneous Appeal. Permission is accorded. Let the petitioners convert this civil revision into 3 Miscellaneous Appeal within two weeks from today, failing which, this civil revision shall stand rejected as not maintainable without further reference to a Bench. SC (Dr. Ravi Ranjan, J.)