JUDGMENT
P.K. Misra, J.
1. Some of the defendants have filed this revision.
2. The suit had been filed for the following reliefs :–
“16. The plaintiffs therefore pray that the Hon’ble Court may be pleased to pass a decree in their favour and against the defendants;
(a) Declaring that they are the hereditary Archakas and
Sebayats of the deities defendants No. 1 (a) & 1 (b)
and are thus entitled to possess the properties described in Schedule “A” Schedule “B” and item No. 6 in Schedule “C” for due discharge of Seva Puja etc., including performance of Jani Jatra etc. attached to the said deities as Hereditary Archakas and Hereditary Sebayats;
(b) Declaring that the plaintiffs are the occupancy tenants of suit A and B Schedule lands;
(c) granting a permanent injunction against defendants 3 to 26, 28 to 30 from in any way interfering with the possession of these plaintiffs of the lands described suit Schedules A and item 6 in Schedule C or in the collection of Rajbhag from Schedule B lands from the defendants 10 to 27 or interfering with the plaintiffs in the matter of conducting the Seba Puja or Jani Jatras by these plaintiffs;
(d) granting costs, directing the defendants 3 to 27 to deliver possession of Schedule A lands and item 6 of Schedule C to the plaintiffs and if they fail to deliver, then deliver the same to court:–
and (e) granting such other, and further reliefs as the Honourable court deems fit in the circumstances of the case;
3. The present petitioners had filed written statement denying the rights claimed by the plaintiffs. Defendants 10 to 23 and 26 had filed joint written statement claiming to be tenants of the disputed land of the deity. It was further stated that they were paying Rajbhag to the plaintiffs.
4. The trial court by judgment dated 31st August, 1981, decreed the suit by passing the following order :–
“that the suit is decreed on contest against defendants 1/a, 1/b, 3 to 18 and 20 to 29 and ex parte against defendants 19 and 30 with costs and on contest against defendant No. 2 without cost. It is hereby declared that the plaintiffs are the hereditary Archakas of the deities.
defendants 1/a and 1/b and are entitled to possess the suit lands described under Schedules ‘A’, ‘B’ and item No. 6 of ‘C’ Schedule for due discharge of Sevapuja etc. including performance of Jani Jatra etc. attached to the said deities as hereditary Archakas and hereditary Sevayats. It is further declared that the plaintiffs are occupancy raiyats of Schedules ‘A’ and ‘B’ lands. The defendants 3 to 27 are directed to deliver possession of Schedule ‘A’ and item No. 6 of Schedule ‘C’ to the plaintiffs within a month hence; failing which, the plaintiffs do recover the same through Court. Defendants 3 to 30 are hereby permanently restrained from interfering with the possession of the plaintiffs over the suit Schedule ‘A’ and item No. 6 of Schedule ‘C’ and with the right of the plaintiffs to collect Rajbhag from Schedule ‘B’ lands from defendants 10 to 27 and further restrained from interfering with the plaintiffs in the matter of conducting Sevapuja, Jani Jatra etc. of the deities.”
Thereafter, appeal was filed by the present petitioners. The lower appellate court had remanded the matter to the trial court for fresh disposal. At that stage it was discovered that defendants 11, 12 and 25 had expired during the pendency of the appeal in the lower appellate court. The plaintiff-opposite parties filed an application before the lower appellate court for recalling the earlier order of remand on the ground that the decision had been passed against the dead persons without any substitution having been effected. The present petitioners filed a petition for substitution styling it as a petition under Order 22, Rule 4, read with Order 1, Rule 10 and Order 6, Rule 17. C.P.C.. The appellate court while rejecting such petition for substitution, has held that the entire appeal had abated due to non-substitution in place of deceased-defendants 11, 12 and 25.
5. Learned counsel appearing for the petitioners submitted that the appellate court has committed a gross illegality in holding that the entire appeal had abated as a whole. It is also submitted that the prayer for substitution should have been considered on merit, even though there was no formal petition
for condonation of delay. The learned appearing for the contesting opposite parties has supported the decision of the lower appellate court and has stated that in view of the reliefs claimed and the decree of the trial court it has been rightly held that the appeal had abated as a whole.
6. The question as to whether an appeal abates as a would depend upon the nature of the decree. This aspect has been emphasised by a question reported in A. I. R. 1962 S.C. 89 (State of Punjab v. Nathu Ram). This decision of the Supreme Court has been noticed and emphasized in several decisions including A.I.R. 1971 S.C. 742 (Mahabir Prasad v. Jage Ram) and A. I. R. 1996 Orissa 183 Babaji Dehuri and others v. Biranchi Ananta and others).
7. A perusal of the order passed by the lower appellate court indicates that the lower appellate court has not considered all the relevant aspects while passing the impugned order. Having regard to the facts and circumstances of the case since the relevant decisions of the Supreme Court and this Court had not been noticed, it is just , and proper that the matter should be re-considered by the lower appellate court. It would be open to the parties to advance further arguments and cite all relevant decisions in support of their contentions and the lower appellate court should dispose of the matter afresh in accordance with law after considering all the relevant aspects. The impugned order is accordingly set aside.
Since the matter is very old the appellate court should deal with the matter as expeditiously as possible, preferably within a period of six months from the date of receipt of the L.C.R. The parties who have appeared in this Court are directed to appear before the lower appellate court on 29th September, 2000, on which date the lower court shall fix in appropriate date and thereafter shall proceed to deal with the matter in accordance with law.
The L. C. R. be sent back immediately.
8. Revision disposed of case remanded.
