IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.55 of 2006 1. Rajmangal Prasad Singh 2. Indrajit Prasad Singh 3. Samarjit Prasad Singh All sons of Asharfi Bhagat 4. Prabhakar Prasad 5. Chandra Shekhar Prasad Singh Both sons of Rajmangal Singh 6. Indu Bhushan Prasad s/o Indrajit Singh 7. Chandra Bhjushan Prasad Singh s/o Indrajit Singh 8. Rudal Prasad Singh 9. Ram Chandra Prasad Singh sons of Bhikhari Bhagat 10. Dewakar Prasad Singh s/o Sheopujan Prasad Singh 11. Sanjay Prasad Singh s/o Rudal Prasad Singh All resident of Village Partappur Tappa Haveli Pergana Mehsi P.s. Madhuban P.O. Mehsi Dist. East Champaran Appellants- petitioners Versus 1. Govind Bhagat s/o Harbansh Bhagat 2. Ram Bahadur Singh s/o Govind Bhagat 3. Bir Bahadur singh 4. Ranbir Singh both minor sons of Govind Bhagat All resident of Village Partappur Tappa Haveli Pergana Mehsi P.S. Madhuban P.O. Mehsi Dist. East Champaran Plaintiffs- Opposite party Ist set 5. Suryadeo Prasad s/o late Uma Kant Saran 6. Kamrakhi Devi 7. Ram Kali Devi 8. Sarswati Devi 9. Kushum Devi 10. Suniti Devi 11. Dhanwanti Devi All daughters of late Uma Kant Saran and resident of village Basantpur P.S. Paro Dist. Muzarrarpur 12. Amar Prasad Kushwaha s/o late Raja Ram Bhagat resident of village Madhuban Tappa Daulta Pargana Majhowa P.S. Kesaraia P.O. Jasauli Dist. East Champaran 13. Rama Shankar Bhagat 14. Sharda Bhagat 15. Sachidanand Bhagat All sons of Jai Chand Bhagat resident of Village Perapur P.S. Mahsi Dist. East Champaran 16. Ramlagan Bhagat 17. Faudar Bhagat both sons of Dhodha Bhagat 18. Horil Bhagat 19. Jainan Bhagat sons of Madan Bhagat 20. Jaisheo Bhagat s/o Madan Bhagat 21. Ram Bharash Bhagat 22. Bigu Bhagat s/o of Brijnan Bhagat All resident of Village Mahsi, Chapra Tappa Harihara Pergana Mehsi P.S. Kesariya P.O. Bhuan Chapra Dist. East Champaran - 2 - Defendants- Opposite party 2nd set 23. Harihar Bhagat 24. Mahindra Singh 25. Ramanand Singh sons of late Ramfal Bhagat All resident of Village Partappur P.S. Mehsi Dist. East Champaran 26. Anandi Devi d/o late Ramfal Bhagat wife of Amarjeet Singh resident of village Chainpur P.S. Turkaulia Dist. East Champaran 27. Munshi Bhagat 28. Yogindra Prasad Singh 29. Sita Ram Prasad Singh sons of Ramdhari Bhagat 30. Arjun Prasad Singh 31. Suresh Prasad Singh sons of Munshi Bhagat 32. Manoj Prasad Singh minor son of Yogendra Prasad 33. Permod Prasad Singh minor son of Sita Ram Prasad Singh All resident of Village Partappur P.S. Mehsi Dist. East Champaran Defendants- Opposite party 3rd set ----------- For the petitioners: Mr Sanjay Kumar, Advocate ----------- 19/ 16.04.2010 Heard learned counsel for the petitioners. 2. This petition has been filed for review of order dated 04.08.2003 passed in F.A. No. 610 of 1974 by which a bench of this court held that due to non-compliance of order dated 21.05.2002 the first appeal had abated against the heir of deceased respondent no.6 and since the appeal had arisen out of partition suit the entire appeal had abated. 3. It transpires that respondent no.6- Bhulwan Kuar had died leaving behind a son for whose substitution appellants filed I.A. No. 2494 of 2002 on 15.05.2002 and on that date itself they filed another application bearing I.A. No. 2493 of 2002 for setting aside abetment and condoning delay in the filing of the aforesaid application for substitution. 4. It further transpires that the said applications were taken up on 21.05.2002 by a bench of this court which directed issuance of notices to the non-appearing respondents and the proposed heir in the substitution matter along with limitation matter for which requisites - 3 - were to be filed within one week. 5. Learned counsel for the petitioners submits that due to inadvertence he could only hear that notices in substitution matter and limitation matter were directed to be sent only to the proposed heir of respondent no.6 and not to other non-appearing respondents, as required under the provision of Rule 4A of Order XXII of the Code of Civil Procedure. In the said circumstances, he duly filed requisites within the time allowed by this court for issuance of notice only upon the proposed heir of respondent no.6. 6. Learned counsel for the petitioners further submits that since vide order dated 21.05.2002 notices were also directed to be sent to non-appearing respondents and no step in that regard having been taken by petitioners, a note was made by the Registrar General on 15.11.2002 that the appeal had abated against the heir of deceased respondent no.6 and only on its basis order dated 04.08.2003 was passed by a bench of this court dismissing the appeal assuming that entire appeal had abated. 7. Considering the aforesaid facts of this case, it appears that the appellants-petitioners under genuine confusion complied order dated 21.05.2002 only in part as they filed requisites for notice upon proposed heir of deceased respondent no.6 but they could not take step for notices upon other non-appearing respondents, due to mistake in hearing the said order. 8. In the said circumstances, this petition is allowed. Order dated 04.08.2003 is reviewed and F.A. No. 610 of 1974 is restored to its file and number in its entirety. However, this order will be subject - 4 - to compliance of order dated 21.05.2002 with respect to non- appearing respondents within one week, failing which not only the instant petition but also the first appeal shall stand dismissed. shahid (S.N. Hussain, J)