IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.1868 of 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.1868 of 2009
1. DILIP SHARMA @ DILIP KUMAR SHARMA.
2. LAVKUSH SHARMA.
3. BINOD SHARMA.
ALL SONS OF BACHCHAN SHARMA.
4. SHYAM SHARMA, SON OF RAJENDRA SHARMA.
5. ARBIND SHARMA, SON OF JHULAN SHARMA.
ALL RESIDENT OF VILLAGE-CHHATAUNI BARHAI
TOLA, P.S.-CHHATAUNI, DISTRICT-EAST CHAMPARAN.
.......................................PLAINTIFFS....PETITIONERS.
Versus
1. KISHUN PRASAD YADAV @ RAM KRISHNA PRASAD
YADAV, SON OF JAI NARAYAN RAI, RESIDENT OF
VILLAGE + P.O.-BANKATWA, P.S. JITUA, DISTRICT-
EAST CHAMPARAN.
...............DEFENDANT IST PARTY...OPPOSITE PARTY.
2. SHARDA DEVI, WIFE OF DHRUV SHARMA, RESIDENT
OF VILLAGE-CHHATAUNI BARHAI TOLA, P.S.
CHHATAUNI, DISTRICT-EAST CHAMPARAN.
..................DEFENDANT 2ND SET...OPPOSITE PARTY
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For the Petitioners : Mr. Dhurendra Kumar, Advocate
Mr, Jitendra Kishore Varma, Amicus Curiae.
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5 26.11.2010 Heard learned counsel for the petitioners and Mr.
Jitendra Kishore Varma, Amicus Curiae, on the point of
maintainability of the civil revision.
Office has reported in its revised stamp report that
by the impugned order, the prayer of the petitioners for
setting aside the abatement under Order XXII Rule 9 of the
Code of Civil Procedure (hereinafter to be referred to as
“the Code”) as against the deceased defendant no. 2 has
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been refused, this civil revision would not be maintainable
and proper remedy would be preferring an appeal under
Order XLIII Rule 1(k) of the Code.
Mr. Varma also supports the report aforesaid and
places reliance upon the decisions rendered in Ram Kumar
Agarwala and another v. Buxar Oil and Rice Mills Ltd.
(1970 BLJR, 530), Sachida Nand Yadav & ors. V.
Dinesh Yadav & ors. (1991 BBCJ, 511) as well as Amba
Bai and ors. V. Gopal and ors. (AIR 2001
SC,2003(paragraph 6) to impress upon this Court that even
if the suit abated in part and prayer for setting aside
abatement is refused and even though the whole suit has not
been not declared to have abated, the proper remedy would
be an appeal under Order XLIII Rule 1(k) of the Code.
Learned counsel for the petitioners also, does not
contest the stamp report, however, submits that the suit
valuation being Rs. 3,60,000/-, proper forum would be a
Miscellaneous Appeal before this Court, and, as such, he
seeks permission to convert this Civil Revision into
Miscellaneous Appeal.
Permission is accorded.
Let the petitioners convert this civil revision into
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Miscellaneous Appeal within two weeks from today, failing
which, this civil revision shall stand rejected as not
maintainable without further reference to a Bench.
SC (Dr. Ravi Ranjan, J.)