IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.48 of 2008 Rajendra Prasad, son of late Jadu Nandan Prasad, resident of Village Khairma, P.S. Jamui, District- Jamui ---- Plaintiff ---- Petitioner. Versus 1. Mukesh Kumar @ Machu Kumar Lal @ Muchchu Prasad 2. Sachchu Lal 3. Kachchu Lal 4. Banti Lal, all sons of late Krishna Prasad, resident of Village Khairma, P.S. Jamui, District- Jamui ---- Defendants --- Opposite parties. ---------------------------------- 8. 20.10.2011 None appears on behalf of the petitioner. The matter was taken up on 18.10.2011, and was adjourned on account of non-appearance of the learned counsel for the petitioner. The plaintiff is the petitioner in this application under section 115 of the Code of Civil Procedure, and is directed against the order dated 28.9.2007, passed by the learned District Judge, Jamui, in M.T.A. No. 24 of 2006, whereby it has been held that the appeal is not maintainable. We have perused the materials on record. It appears that, during pendency of the suit, defendant no.1 (Krishnandan Prasad) died on 27.1.2006, and application was filed on behalf of the remaining defendants on 2 8.8.2006, under the provisions of Order 22, Rule 4(3) of the Code of Civil Procedure, stating therein that defendant no.1died on 27.1.2006, leaving behind his legal heirs, namely, wife, sons and daughters. The plaintiff has not taken any step for substitution of the heirs and legal representatives and, therefore, the suit has abated. The plaintiff contested this application before the learned trial court, and submitted that the legal heirs of defendant no.1 were already on record. On a consideration of the materials, the learned trial court held that all the heirs of the deceased defendant no.1 were not on record and, therefore, this suit could not proceed in the absence of the remaining heirs. The suit has been held to have abated. The plaintiff challenged the same by preferring the aforesaid appeal which has been dismissed on the ground of maintainability. It appears to us that the learned trial court took the right view in observing that the suit could not have proceeded in the absence of the remaining heirs of the deceased defendant no.1. The order of the learned trial court can not be faulted. In view of the position that we have considered the plaintiff’s case on merits, we do not want to go into the question whether or not the learned 3 District Judge is right in holding that the appeal before him was not maintainable. The civil revision application is dismissed. Vinay/ ( S. K. Katriar, J.)