IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.249 of 1999 SMT.RAJYA LAKSHMI DATTA & ORS Versus SMT. SHANTI DATTA & ORS ------------ 23/ 23.03.2010 Heard learned counsel for the appellants and learned counsel for the respondents. 2. I.A.No.1576 of 2008 has been filed on 10.03.2008 on behalf of the appellants for substituting the heirs of respondent no.43- Smt. Lakshmi Prasad who is said to have died on 16.11.2007 leaving behind three sons and a daughter as her heirs and legal representatives fully detailed in paragraph 3 of the interlocutory application. I.A.No.1577 of 2008 has been filed on 10.03.2008 on behalf of the appellants for condoning delay in the filing of the aforesaid application for substitution of the heirs of respondent no.43. A prayer has also been made by learned counsel for the appellants to set aside abatement. Considering the facts and circumstances of this case, it appears that genuine reasons have been shown which prevented the appellants from filing the aforesaid interlocutory applications earlier. Accordingly, both the aforesaid interlocutory applications are allowed, delay is condoned and abatement is set aside. Let the aforesaid heirs of respondent no.43 be substituted in her place. 3. I.A.No.1207 of 2006 had been filed on 08.03.2006 on behalf of the appellants stating that respondent no.41-Devki Nandan Verma had died. Although more than four years have lapsed but neither the date of death has been given nor the heirs to be substituted on behalf of the respondent no.41 have been named by the appellants - 2 - although sufficient time was granted to them. In the said circumstances, the aforesaid interlocutory application bearing I.A. No. 1207 of 2006 is dismissed and accordingly, this Miscellaneous Appeal stands abated against the aforesaid respondent no.41 and his heirs. 4. It may be further noted that this appeal arises out of Miscellaneous Case no. 27 of 1986 which had arisen out of Partition Suit No. 444 of 1983 (128/1985). In the said circumstances, since this Miscellaneous Appeal arises out of a Partition suit, abatement of the appeal against one of the parties shall affect the entire Miscellaneous Appeal. 5. The aforesaid Partition Suit no.444 of 1983(128/1985) was filed by the respondents Ist set for partition of the suit property and the said suit was decreed exparte on 25.01.1986. Against the aforesaid exparte decree the appellants filed Miscellaneous Case no. 27 of 1986 which remained pending for 13 years due to dilatory attitude of the petitioner. However, even after repeated adjournment the petitioner did not produce any evidence and hence his prayer for further adjournment was rejected by the learned court below and he was directed to produce evidence but on his refusal the said Miscellaneous Case was dismissed in absence of any evidence on behalf of the petitioner vide impugned order dated 07.04.1999. 6. It further transpires that in the instant Miscellaneous Appeal also, efforts have been made by the appellants to delay its disposal due to which even after lapse of more than a decade it is still - 3 - pending for admission and has been placed now before this court for hearing under Order XLI Rule 11 of the Code of Civil Procedure. Thus the aim of the appellants is quite clear that they want merely to delay the proceeding to avoid preparation of any final decree in the case on the basis of the preliminary decree prepared as far back as in the year 1986 i.e. 24 years ago. 7. In the aforesaid facts and circumstances, this court does not find any merit in the instant Miscellaneous Appeal nor does it find any illegality in the impugned order of the learned court below. Hence this Miscellaneous Appeal is dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain, J)