^ 1N THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR .^o. m. WRITPETITION f227) N0. OF 2010 PETITIONER Plaintiff Applicant ^^\y^ ^•^^ ..^•' v-y<y \: ^^ .-^. ^' ^J-"" ^ ^fRam Nayaran, S/o Punaram (Dead) Parasram Dhanendra (Halba), S/o Late Ram Narayan Dhanendra, aged about 54 years, R/o Village Garka, Tahsil Doundi Lohara, District Durg (C.G.) At present residing at Government Hospital, Chikhlakasa, Rajhara, District Durg (C.G.) ^^, VERSUS RESPONDENTS : 1. Shambhuram, S/o Pardeshi Defendant ^g^^ ^^ ^^^ ^ ^g^ ^^ Village Garka, Tahsil Doundi Lohara, District Durg (C.G.) 2.^ Stateof Chhattisgarh, Through: the Collector, Durg (C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA s^ fflGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'bleShri Prashant Kumar^iishjra Writ Petition (227) No. 6187/2010 PETITIONER : Ram Narayan (Dead) Versus RESPONDENTS : Shambhuram and another Appearance: Shri P.P. Sahu, counsel for the petitioner. None for the respondent No.l even in the second call. Shri Ajay Dwivedi, Dy.G.A. for the State/respondent No.2. ^rRIT PETITION UNDER ARTICLE 227 OF THE CONSTITtmON OF LNDIA ORAL ORDER (11.02.2011) Petitioner is aggrieved by the order passed by the First Appellate Court rejecting his application under Order 22 Rule 10 of CPC for his impleadment as a legal heir ofdeceased Ram Narayan vvho was respondeiitNo.l before the First Appellate Court. (2) Admittedly, first appeal challenging the judgment and decree passed by the Second Civil Judge Class-II, Balod District Durg in Civil Suit No.37-A/98 is pending in the court of Additional District Judge, Balod District Durg. The said appeal was heard finally and was posted for judgment. During this inten^al the deceased Ram Narayan died, hovvever in view of provisions contained in Order 22 Rule 6 of CPC the appeal could not have abated on account of death of the respondent, therefore no application was moved for f impleadment ofthe legal heirs. ^wesas%^ ^^.. :N% I ^^^% 1 :^^y" • 5V (3) On account oftransfer ofthe Presiding Officer before delivety of judgment the appeal was posted for rehearing and thereafter an application under Order 22 Rule 4 of CPC was moved by the appellant in the first appeal who is respondent No.l herein, on 24/09/2009. This application was rejected by the First Appellate Court on 10/05//2010 on the ground tfaat since on an earlier occasion it was reported that the death having taken place at the time when the matter was closed for judgment there is no requiremcnt of impleading the legal heirs and thereafter vvhen the matter was posted for rehearing the application has been filed, however, since in view of the provisions contained in Rule 6 of Order 22 the matter has not abated, it is not possible to order impleadnient. (4) The petitioner herein who is legal heir of deceased Ram Narayan subsequently moved the subject application under Order 22 Rule 10 ofCPC for his impleadment on the ground that the deceased has executed a will in his favour during pendency of the first appeal and therefore he should be impleaded as a respondent. (5) On pemsal of the impugned order and the documents annexed with the writ petition it appears that when once the first appeal was posted for rehearing on account of transfer of the Presiding Officer and before delivety ofjudgment by the transfen'ed Presiding OtYicer, rigor under Rule 6 of Order 22 would cease to operate and the JSrst appeal would be treated as any other pending first appeal requiring impleadmentofthe legal heirs ofthe deceased/respondent. I "•-^ ^r -3 (6) In view ofthe above, this writ petition is disposed of with a direction to the First Appellate Court to rehear and consider the application earlier subniitted by the appellant of the first appeal to implead the sons and daughters ofdeceased Ram Narayan as well as the present application preferred by the petitioner under Ordcr 22 Riile 10 of CPC and take a decision in accordance with law before proceeding to hear the appeal finally. The impugned order as well as the order dated 10/05/2010 earlier passed by the appellate court are set aside. (7) With this observation, the instant petition stands allowed. Sd/- Prashant Kumar Mishra Judge ^