IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.112 of 2006 RAMAUTAR SAH & ORS Versus MOST.SOGARA KHATOON & ORS ----------- 8 4.9.2008 Nobody appears to oppose this restoration application. This application is for restoration of first appeal 152 of 1998. Notices were issued on the opposite parties. Some of the opposite parties died during the pendency of this application and the substitution petition has been filed substituting them as heirs. By order dated 4.9.2001 it appears that this Court had ordered the appellant to take steps for fresh notice on respondents 3(i) to 3(iii) under registered cover with A/D. This order was a pre-emptory order. The counsel for the appellant did not comply with the Court’s order thus the appeal abated against the heirs of the deceased respondent no. 3. Later by order dated 20.8.2008 this Court held that this appeal would abate as one of the respondent had died and the substitution petition had not been filed within time. Learned counsel appearing on behalf of the petitioners had prayed that the appeal may be 2 restored on the ground that the father of respondent no. 3 was already on record of the case as respondent no. 1 K and it is, therefore, submitted that as per judgment reported in 1982 Patna 138 in the case of Badri Narayan Prasad Sah & Ors. Vs. Bansidhar Prasad, the entire appeal could not abate as some of the heirs were already on record. Considering the law laid down by this Court with respect to the abatement of the appeal, where some of the heirs are already on record it would be proper to restore the first appeal to its original file. Learned counsel for the petitioners submits that the in pursuance of the order dated 4.9.2001 the registered notices on respondents 3(i) to 3(iii) have already been filed on 2nd March, 2006. This application is allowed. Sanjay (Sheema Ali Khan, J.)