IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.3195 of 2010 MD. MUSTAKIM & ORS. Versus POONAM KUMARI & ORS. ----------- 03/ 01.09.2010 This petition has been filed for recall of order dated 22.05.2009 by which S.A. No.441 of 1994 was dismissed for default due to non-appearance of learned counsel for the sole appellant Mostt. Tabijan Nissa. Learned counsel for the petitioner submits that the second appeal was filed by the sole appellant Mosst. Tabijan Nissa through her learned counsel Md. Anisur Rahman and others, but she died on 14.09.2003 and within the period of limitation I.A. No.5565 of 2003 was filed on 11.12.2003 by her heirs through another set of lawyers, namely Nirmal Kumar Sinha, No.3 and others. It is also stated that the said interlocutory application was pending and no order was passed thereon and in the meantime the said second appeal was listed for hearing under Order XLI Rule 11 of the Code of Civil Procedure on 22.05.2009 and due to the aforesaid reasons, counsel for the proposed heirs of sole appellant could not appear and the said second appeal was dismissed. From the facts of this case, it is quite apparent that the second appeal was dismissed for default against a dead person without substituting her heirs, although an interlocutory application for the said purpose was already pending. In the said circumstances, this M.J.C. petition is allowed and order - 2 - dated 22.05.2009 passed in S.A. No.441 of 1994 is recalled. Harish (S.N. Hussain, J.)