JUDGMENT
S.N. Hussain, J.
1. Heard learned counsel for the parties.
2. The petitioners have been substituted in place of the sole plaintiff Sanjhari Kuer (who died on 28.5.2000) on the basis of the petition filed by Defendant No. 7 vide order dated 5.1.2002 passed in Title Suit No. 46/1972 (87/1973) which was filed by the deceased sole plaintiff for partition of the suit property in which a preliminary decree of partition had already been prepared and the matter was pending for preparation of the final decree.
3. the petitioners are aggrieved by order dated 3.10.2002 passed in the aforesaid suit by which the learned Sub-Judge-1, Bhabua, allowed the petition filed by O.P. No. 1 under the provision of Order XXII Rule 5, CPC and stayed the operation of order dated 5.1.2002 till the disposal of the enquiry for determining the legal representative of the deceased sole plaintiff.
4. The short fact of the case is that during the preparation of final decree the sole original plaintiff Sanjhari Kuer died on 28.5.2000 whereafter Defendant No. 7 of the suit filed a substitution petition for substitution of the revision petitioners in her place claiming to be the defendants of the sister plaintiff’s husband. It appears that the said petition was allowed by the learned Court below vide order dated 5.1.2002 against which O.P. First set filed Civil Revision No. 433/2002 which was not pressed by the said revision petitioners and accordingly the same was dismissed on 22.8.2002. In the meantime, O.P. First set filed a petition in the Court below for recall of order dated 5.1.2002 challenging that these petitioners were not the heirs of the deceased sole plaintiff. On the aforesaid petition the learned Court below passed the impugned order dated 3.10.2002 allowing the said petition filed by O.P. No. 1 under Order XXII Rule 5, CPC and stayed the operation of order dated 5.1.2002 till the disposal of the enquiry for determining the legal heirs of the deceased sole plaintiff.
5. A preliminary objection has been raised by the learned counsel for O.P. No. 3 that the instant Civil Revision is not maintainable as no final order has been passed and only an earlier order of the Court below has been stayed by the impugned order and hence the Civil Revision is not maintainable. He further-claimed that the revision petitioners have wrongly stated that by the impugned order dated 3.10.2002, the earlier order dated 5.1.2002 had been recalled, although no such order has been passed by the learned Court below as yet.
6. The learned counsel for the petitioners vehemently challenges the aforesaid impugned order claiming that substitution does not create any right and hence there was no occasion for the learned Court below to hold an enquiry in respect of the said matter and the entire issue could be finally decided later by the learned trial Court. He further contended that order dated 5.1.2002 having been affirmed by this Court when the Civil Revision filed by O.P. First set against the said order stood dismissed as withdrawn, there was no occasion for the learned Court below to entertain any petition challenging the said order dated 5.1.2002. He also contended that O.P. First set who were revision-petitioners in Civil Revision No. 433/2002 did not file any petition for withdrawal of the suit stating that since they filed a petition for recall of order dated 5.1.2002 in the Court below, hence they want to withdraw the above mentioned Civil Revision which clearly shows that the said Civil Revision was dismissed as withdrawn and there was no occasion for filing a petition in the Court below. The learned counsel for the petitioners further contended that public policy in judicial discipline did not allow subordinate Court to stay an order which has been affirmed by High Court. Hence, in the aforesaid circumstances, the learned counsel for the petitioners submits that the impugned order is illegal, perverse and the same has to be set aside.
7. Three sets of learned counsel have appeared on behalf of O.P. No. 5, O.P. No. 3 and O.P. No. 1 respectively, but their contentions against the claim of the petitioners are the same. Hence, they are being summed up together. The learned counsel for the opposite parties claim that the copy of the substitution petition filed by Defendant No. 7 in the Court below was not served upon hem and they had no knowledge about the same and even the said order dated 5.1.2002 was passed behind their back. They further claim that the opposite parties had already filed a petition under Order XXII Rule 5, CPC for challenging the said substitution and praying that an enquiry under Order XXII Rule 5, CPC may be held in the matter. But when the petitioners objected to it on the ground that Civil Revision No. 433 of 2002 was pending, the said opposite parties informed the Court below that they were going to withdraw the said Civil Revision and accordingly the said Civil Revision was not pressed by them on 22.8.2002. The learned counsel for the opposite parties further asserted that this Court did not affirm the order dated 5.1.2002 and there was no occasion for the learned Court below to reject their petition under Order XXII Rule 5, CPC on that ground: He further asserted that it was the duty cast upon the Court by the provision of Order XXII Rule 5, CPC to determine such a question if raised. In the aforesaid circumstances, they claim that the impugned order is fully justified.
8. After hearing the learned counsel for the parties and after perusing the materials on record specially the order of this Court dated 22.8.2002 passed in Civil Revision No. 433/2002 and the orders of the learned Court below, it is quite apparent that the earlier Civil Revision No. 433/2002 was neither decided on merits nor it was dismissed for default, rather the said order clearly speaks that the said revision was not pressed and hence it was dismissed. The reason for not pressing the civil Revision is also apparent from the impugned order itself which shows that the petition under Order XXII Rule 5, CPC had already been filed by O.P. First set against which the present revision-petitioners raised objection that the said Civil Revision was pending against order dated 5.1.2002 during pendency of which no order can be passed. In the said circumstances, the said defendants informed the Court below that they will be withdrawing the revision so that the said petition under Order XXII Rule 5, CPC may be decided by the learned Court below and in that background Civil Revision No. 433/2002 was not pressed and was dismissed as such on 22.8.2002.
9. It is also apparent from the record that the earlier substitution petition filed by Defendant No. 7 was cursorily allowed by the learned Court below on 5.1.2002 without even realising that no copy of the said petition was served upon the other defendants who were not given an opportunity to contest the same or to place their cases in the Court. In the aforesaid circumstances, the order of this Court passed in the earlier Civil Revision No. 433/2002 can not restrain the learned Court below from passing an appropriate order in accordance with law.
10. In the said facts and circumstances, I do not find any merit in this Civil Revision nor do I find any illegality or jurisdictional error in he impugned order and accordingly this Civil Revision is dismissed.