IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.486 of 1974
Shankar Singh & Ors
Versus
Shyam Sunderi Devi & Anr
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94. 30.06.2011. Heard the learned counsel for the parties on
interlocutory application No.8180 of 2009.
(2) This interlocutory application has been filed
for substitution of the legal representatives of the
deceased appellant No.7(iii), 7(v), 8 and 18. The
details of the legal representatives have been
mentioned in paragraph 2, 3, 4, 5 of the said
substitution application. Out of the said legal
representatives, some of them have appeared by filing
Vakalatnama but some of them have not appeared
through Vakalatnama. The details of the legal
representatives who have not appeared have been
mentioned in paragraph 3, 4, 5 of I.A. No.1340 of 2011.
The learned counsel for the respondent has got no
objection to the substitution of the legal
representatives. According to him, the legal
representatives who are sought to be transposed as
respondent will delay the matter and, therefore, the
appellant be directed to file Vakalatnama and if no
Vakalatnama is filed on their behalf, no notice may be
issued to them, otherwise it will delay in disposal of the
appeal which is of the year 1974 and the lower court
2
records were destroyed in the flood of the year 1975-
76, the lower court records have been reconstructed.
(3) Considering the above facts and
circumstances of the case, both the interlocutory
applications are allowed, i.e., I.A. No.8180 of 2009 and
I.A. No.1340 of 2011. However, no notice is required
to be issued to the newly transposed respondents
because some of the legal representatives of the
deceased appellants have already appeared by filing
Vakalatnama and they are appellant who are
challenging the impugned Judgment and Decree and in
view of order 41 Rule 33 of the Code of Civil Procedure,
the Judgment and Decree can also be molded in favour
of the respondents who have not appealed against the
impugned Judgment and Decree.
(4) The office is directed to list this First Appeal
under the heading for hearing without paper book after
one month, if it is otherwise ready.
(5) So far I.A. No.1341 of 2011 is concerned, it
is allowed and the appellant Nos.2, 4, 5, 9, 11, 13, to
17 are declared as major. Vakalatnama has already
been filed on their behalf also.
Sanjeev/- (Mungeshwar Sahoo,J.)