IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.111 of 2005 RAJESHWAR SINGH & ORS Versus BINDA SINGH & ORS ----------- For the appellants:- Mr. Jitendra Kumar Roy,Advocate 5 8.9.2008 Appellants aggrieved by the judgment and decree dated 6th of October, 1997 passed in Title Appeal No. 69 of 1989/17/ 1991 arising out of the judgment and decree dated 31st of March 1989 passed in Title Suit No. 138 of 1981, preferred Second Appeal No.146 of 1998 before this Court. In the said appeal by order dated 26.11.2001 appellants were granted one week time to take steps for substituting the heirs of deceased respondent no.2. Appellants did not comply the said order and thereafter the matter was taken up on 10.1.2002. On the said date further ten days time was granted to file substitution petition, failing which it was directed that the appeal shall stand abated against respondent no.2. Appellants did not comply the aforesaid order and in view of the per-emptory nature of the order appeal - 2 - against respondent no.2 had abated. Thereafter the matter came up for consideration before this Court on 8.2.2002. Taking into account that the appeal has arisen out of a partition suit and the appeal had abated against respondent no.2, this Court held that the entire appeal has abated. Appellants thereafter filed MJC No.499 of 2002 for restoration of the aforesaid Second Appeal No.146 of 1998. This Court by order dated 13.3.2002 held that the application is not maintainable but gave liberty to the appellants to file application under Order XXII Rule 9(2) of the Code of Civil Procedure for setting aside the abatement. Appellants then filed MJC No. 1597 of 2002 for setting aside the abatement. The learned Single Judge by order dated 4.1.2005 dismissed the said application. Aggrieved by the same, appellants have preferred this appeal under Clause 10 of the Letters Patent. Mr. Jitendra Kumar Roy, appearing on - 3 - behalf of the appellants submits that the appellants herein were respondents in the Court below and in fact respondent no.2 had died in the Court below itself but the appellants therein did not bring the legal heirs on record and accordingly the appellants filed the appeal and made them the respondents. He submits that this is a good ground to set aside the abatement. We do not find any substance in the submission of the learned Counsel. The question is not under what circumstance respondent no.2 was added as respondent in the appeal but the question is as to under what circumstance the appellants had not complied the order of this Court for filing substitution petition. Appellants were granted time by order dated 26.11.2001 to take steps for substitution of heirs deceased respondent no.2. They did not comply the said order and thereafter again on 10.1.2002 ten days time was granted to file substitution petition, failing which it was made clear that the appeal shall abate against - 4 - respondent no.2. Appellants did not take steps for filing the substitution petition. The learned Single Judge on consideration of these facts came to the conclusion that sufficient cause has not been furnished for setting aside the abatement. We are of the opinion that the learned Single Judge did not commit any error while passing the aforesaid order. We do not find any merit in the appeal and it is dismissed accordingly. (Chandramauli Kr.Prasad,J.) (Dr.Ravi Ranjan,J.) A.Kumar