(Mst. Kesi Bai Vs. Ratanlal & ors.) S.B. CIVIL II Appeal NO.96/2007. Date of order : 26.03.2007. HON'BLE MR. JUSTICE PRAKASH TATIA Mr Manish Pitaliya, for the appellant. Heard the learned counsel for the appellant. The appeal has been preferred by Smt. Keshi Bai W/o late Chaturbhuj Purbiya. The respondent -plaintiff filed suit for injunction against these defendants. One of the defendant Chaturbhuj died during pendency of the appeal. According to the appellant, after the death of Chaturbhuj no steps were taken by the plaintiff for brining on record the legal representatives of deceased Chaturbhuj. It is stated that appellant Kesi Bai w/o of Chaturbhuj is in possession of property in dispute. The learned trial Court decreed the suit of the plaintiff on 23.9.2003 and restrained the defendants from interfering in the peaceful possession of the plaintiff over the property in dispute. The present appellant could make herself to be aggrieved against the judgment and decree of learned trial Court, preferred appeal as legal representatives of deceased Chaturbhuj. The appeal was dismissed by the learned appellate Court vide judgment and decree dated 19th May, 2006 after holding that two sons of defendant Chaturbhuj were already party in the suit, the suit has not abated and the decree is binding upon the heirs of deceased Chaturbhuj. The learned counsel for the appellant vehemently submitted that appellant wife of deceased defendant Chaturbhuj is in possession of the suit property and injunction decree has been passed against her husband and before passing of the decree, her husband Charturbhuj defendant No.1 died, the decree against Chaturbhuj is a null and void and is not binding upon the appellant- wife of Charturbhuj. Since Charturbhuj himself was party in the suit and two sons were also party and they were the heirs of deceased Charturbhuj, therefore, two of the legal representatives of defendant No.2 were already on record. For the reasons best known to these persons who were represented by advocate, they did not move any application before the learned trial Court on the ground that the suit has abated due to death of Chaturbhuj despite the fact that according to learned counsel for the appellant the two sons of deceased Chaturbhuj took the plea of abatement in the written statement. The fact remained is that they did not prayed for dismissal of the suit as abated. Had it been there, the appropriate order could have been passed and that would have avoided all these controversies. Even if the name of defendant was not deleted or one one or some of the legal representatives of defendant Chaturbhuj were not impleaded as party in the suit, the suit could not have been dismissed because of presence of the two of the legal representatives on record of the trial Court. At the most, other legal representatives could have been impleaded as party. Merely because of absence of one legal representative or more legal representatives, the suit could not have been dismissed. The appellate Court also rightly held that the suit has not abated. I do not find any illegality in the impugned judgment and decree. No substantial question of law is involved in the appeal. The appeal is accordingly dismissed. (PRAKASH TATIA), J. gandhi/