IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.117 of 2003 RABINDRA NATH UPADHYAY Versus SRI NIWAS UPADHYAY & ORS ----------- 14/ 18.08.2008 The order under challenge is dated 21.12.2002 passed in Title Appeal No. 17 of 1995 by Additional District Judge-III, Buxar, whereby and whereunder on the basis of petition filed by Sri Niwas Upadhyay who is respondent here, on 31.08.2001 praying therein for abatement, the appeal was disposed of and the appeal as a whole stood abated. Nobody appears for the respondents Sri Niwas Upadhyay and others, against whom it has been submitted that notices have been validly served. Detail order in respect of non-filing of substitution petition in respect of death of Brindavan Upadhyay by the appellant in the court below in the impugned order has been discussed. But, here the learned counsel for the appellant has referred to Order 22 Rule 10(A) of the CPC which runs as follows: “Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist”. It has also been submitted from the entire impugned order and conduct of the respondent in the court below, it would be revealed - 2 - that the learned lawyer appearing for the respondent Sri Niwas Upadhyay who happens to be full brother of the deceased Brindavan Upadhyay, never informed about death of Brindavan Upadhyay in the first appellate court so as to enable the court to give a notice regarding such death of Brindavan Upadhyay. In short, it has been submitted that the very object and purpose for which new provision has been added in the amended CPC. was completely ignored, which came into force on Ist July, 2002. The impugned order is dated 21.12.2002. In the facts and circumstances the order impugned is not sustainable in law. The court below is directed to consider the legal aspects of law as provided under order 22 Rule 10(A) of the CPC. In the result, the impugned order is set aside and the court below is directed to pass order in accordance with law by giving them an opportunity of being heard. The Misc. Appeal in the result, is hereby allowed. Sanjeet (Subash Chandra Jha, J.)