-^. I tti, A ^isK HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND AFPEAL N0. 133/2011 APPELLANTS DEFENDANTS Sanjay @ Narad Choubey, aged about 35 years, S/o Late Jagdish CIioubey. Kunu @ Manoj Kuinar Choubey aged about 30 years S/o Late Jagdish Cboubey. Both resideat of Baikunthpur, Raigarh TahsU aud District Raigarh (C.G.). Vifa-am Prasad Shanna, aged about 42 years S/o Narsiag Prasad Sharma, R/o Village Kolam, Tahsil Ghai^oda District Raigarb (C.G.). Smt. Ainanaati W/o Late Mihardas Mahant aged about 70 years R/o ViUage Bayaug Tahsil aad Distnct Raigarh (C.G.). Smt. Amari Bai W/o Mandar Das Mahant aged about 68 years R/o vflBage Kensara, Police Station Puaour Tahsfl and District Raigarh (C.G.). SE^iOND APPEAL UNDER SECTION 100 OF THB CODE OP CIVIL PROCEDURE 1908. :Hon'Me Mr. T.P.Sharma, J.) VERSUS RESPONDENTS PLAINTIFFS Present:- Shri Harshwardhan, Advooate for the appellants. Shri Ravi Kumar Bhagat, Advocate for the respondent No. 1 . Respondent No. 2 dead. ORAI^ JUDGEMENT (Passedoa 29/07/2011) By tbis second appeal uader Section 100 of the Code of Civil Procedure, 1908 ( ia short 'the Code") agauist the order dated 2/2/2011 passed by 3rd Additional District Judge (F.T.C.) Raigarh, C.G. m CivU M.J.C. No. 7 {'2010 whereby Court below has disaussed the appUcation for condonation of delay in filiag f&e appeal against fhe judgment aad decree dated 30/4/2010 passed by Ist Civil Judge Class-II, Ra^arh (C.G.) in CivU Suit No. 64A/2007. Substaatial question of law for decision of fhis appeal has been fi-aaaed vide order dated 22/6/201l. AppeUauts have filed I.A. No. 03 appUcation for bringuig the legal represcntatives of deceased respondent No. 2 Ainari Bai on record iu which it has been mentioned that during the pendency /- <-";vi^v'X ^.-.'.-^t-^ !- '^.^-f.±;--' A ;! -s^- of aforesaid appeal/Misc. Judicial Case Amari Bai died aad they have filed application for inipleading the legal representatives of deceased Amari Bai but Court below has not passed auy order on the aforesaid apptication aud has passed the order impugned. Record of the Court below reveal that present appeUants bave filed aa application for brining the legal representatives deceased Ainari Bai on rccord on 5/10/10 on account of deafh of Amari Bai dated 2/6/10 but no order has beeii passed by Court below aad order impugned has been passed against the dead person Amari Bai. Court below has not coinpetent to pass the oider orjudgment against the dead person without mipleadiug bis or her legal representatives on record or proceediag agamst such party, after passiag of order of abateinent relating to such party. This is not fhe case in which parties have failed to file appUcation before fhe Court below but ia the present case 3rd Additional District Judge (F.T.C.) Raigarh, C.G. has not decided the application filed on behatf of fhe appeUaats which was sine-quo-non before it before passiag any order on appUcation for condonation of delay ia filing the appeal. By not decidiug such appUcation Court below has comxaitted grave iUegality aad was reckless in judicial proceediug. Order passed agamst dead person is not sustaiaable iinder fhe law. Consequently, order impugned is hereby set aside. Case is reiaanded back to fhe Court of 3rd Additioiial District Judge (E.T.C.) Raigarh, C.G. for deciding fhe petition afresh after deciding appUcation for brinmg fhe legal representatives of deceased Amari Bai. -f" 4. Parties are directed to reaaam. present before fhe Court below on 18/8/2011. 5. Record be sent to the Court below. 6. I.A.' No. 03 is dismissed suminarily, No order'as tocosts. ~~ T.P. Sharma Judge ^.^^