IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.187 of 2005 1. Sardanand Das son of Late Sachidanand Das 2. Mossomat Joshna Das W/o Late Krishnanand Das 3. Mritunjay Das son of Late Krishnanand Das 4. Shri Shyamanand Das 5. Shri Binodanand Das 6. Shri Navinanand Das 7. Shri Brijnandan Das @ Braj Nand Das 4 to 7 are sons of late Sachidanand Das 8. Smt. Bhawani Das, D/o Late Sachidanand Das, All resident of Mauja Durgapur, P.S. Katihar, District Katihar. 9. Smt. Ratna Poddar W/o R.N. Poddar, resident of Uttara in Bose Lodge P.O.Sadepur, District 24 Parganas (West Bengal). 10. Smt. Namita Sadhu, wife of Shri Sushil Kumar Sadhu, Resident of Mohalla Mundi Chowk, Janki Prasad Lane, Bhagalpur, District Bhagalpur. ……..Defendants-Appellants-Appellants. Versus 1. Aniruddha Pd. Yadav son of late Mahadeo Yadav 2. Jai Prakash alias Jitendra Yadav Son of late Mahadeo Yadav, both Nos.1 and 2 are resident of village Belauri, P.S. Sadar , District Purnia 3. Smt. Shakuntala Devi D/o Late Mahadeo Yadav and W/o Harishchandra Pd. Yadav 4. Raj Kumari Devi D/o Late Mahadeo Yadav and W/o Ravindra Kumar Yadav Both 3 and 4 are resident of village Ufrail, P.S. Khajanchi Hat (Maranga), District Purnia. 5. Gita Devi D/o Late Mahadeo Yadav W/o Naresh Prasad Yadav, ` resident of Kelabari Dand Khora, P.S. Dalan, District Katihar. ……….Plaintiff-Respondents-Respondents. ---------- For the appellants : Mr. Jagdish Prasad Bhagat, Advocate. For the respondents : None. ----------- 06/ 22.03.2010 Learned counsel for the appellants submits that he had filed an affidavit on 26.02.2010 as well as I.A. No. 3437 of 2005 and I. A. No. 4612 of 2008 on 19.07.2005 and 04.02.2008, respectively, but they have not been disposed of while deciding the instant second appeal vide order dated 09.03.2010. 2 2. So far I.A. No. 3437 of 2005 and affidavit dated 26.02.2010 are concerned, they were filed for ignoring the defect of the stamp report that Krishnanand Das, who was appellant no.2 in the certified copy of the decree under appeal, has not been impleaded in the instant second appeal, whereas, Mossomat. Joshna and Mritunjay Das, who were impleaded in this second appeal as appellants no.2 and 3, were not parties in the decree under appeal. It is stated in the said affidavit that the said Krishnanand Das had died on 25.07.2002 before filing of the instant second appeal and hence he was not impleaded and in his place, his heirs, namely, his widow and son were impleaded as appellants no.2 and 3 in the instant second appeal, who were represented through Mr. Jagdish Prasad Bhagat, Advocate, who was appearing on behalf of other appellants also. 3. I.A. No. 4612 of 2008 was filed for expunging the names of appellants no. 2, 5 and 8 and also for impleading the heirs of appellants no.2 and 5 in their respective places after setting aside abatement and condoning the delay. It is stated that appellant no.2 Mossomat Joshna Das died on 11.12.2006 leaving behind a son and a daughter, out of whom son Mritunjay Das is already on record as appellant no.3, whereas, Dr. Sarmita Sinha was not a party to the second appeal and hence she has to be substituted in place of appellant no.2 as she has already appeared through her counsel Mr. Jagdish Prasad Bhagat vide vakalatnama dated 02.08.2008. 4. It is also stated that appellant no.5 Shri 3 Binodanand Das died on 11.07.2006 leaving behind a widow and a son and a daughter, fully detailed in paragraph no.7 of the interlocutory application, who were to be substituted in place of appellant no.5 as they had also filed their duly executed vakalatnama on 02.08.2008 through their counsel Mr. Jagdish Prasad Bhagat, Advocate. 5. It is further stated that appellant no. 8 Mossomat Bhawani Das, widow of late Sachidanand Das, also died on 10.01.2007 leaving behind her heris, who are already on record as appellants no.1 and 4 to 7, who were represented by Mr. Jagdish Prasad Bhagat. Advocate. 6. It may be noted that although the said interlocutory applications were filed much earlier and second appeal was pending for admission since last five years, it was directed vide order dated 11.02.2010 that the said second appeal be listed on 2202.2010 for hearing under Order XLI Rule 11 of the Code of Civil Procedure (hereinafter referred to as `the Code’ for the sake of brevity ) along with all the applications. Accordingly, on 22.02.2010, the instant second appeal was called out for hearing under Order XLI Rule 11 of the Code , but no one appeared on behalf of the appellants to press either the second appeal or the applications filed therein and, accordingly, the matter was adjourned. 7. Finally when on 09.03.2010 this second appeal was called out for hearing under Order XLI Rule 11 of the Code, Mr. Jagdish Prasad Bhagat, Advocate, who was appearing on behalf of 4 the appellants and also on behalf of the heirs of deceased appellants, did not place the said interlocutory applications and affidavit, and instead argued the second appeal itself in detail, whereafter the matter was decided. 8. In the said circumstances, the aforesaid interlocutory applications would be deemed to have been allowed otherwise there was no occasion for dealing with the second appeal on merit as it would have automatically abated due to the delay caused in filing of the said application for substitution with respect to the heirs of appellant no. 5. MPS/ ( S. N. Hussain, J. )