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Mohd. Anis & Others v. Anuman Islamia - WRIT - C No. 26899 of 2006 [2006] RD-AH 9707 (17 May 2006)


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Heard the learned counsel for the parties.

By the impugned order dated 26.4.2006 the appellate court has allowed substitution of the deceased appellant as well as respondents No. 1, 2 and 4 in Civil Appeal No. 76 of 1997. The parties of this appeal are common in the connected Appeal No. 77 1997.

The learned counsel for the petitioner contends that the appellant as well as respondents No. 1, 2 and 4 died years before and no substitution in this appeal (76 of 1997) had been recorded nor any prayer for such substitution was made by the appellant-respondent. Therefore, the appeal had automatically abated and the court below has illegally allowed the application of the appellant for such substitution at such belated stage.

In reply to the aforesaid submission, the learned counsel for the respondents has emphasised that the aforesaid two connected appeals arise out of the same judgment of the trial court and in  the connected Appeal No. 77 of 1997, the formalities for substitution of the deceased appellant as well as the respondents had already been gone into well within time and the substitution had been recorded. Therefore, if in the connected appeal such substitution had been recorded, there was absolutely no occasion for abatement of the present appeal.

The law on the aforesaid point is settled. If in one proceeding which is connected with other proceeding and arise out of the same suits, that one proceeding will not abate in case the substitution in the other proceeding has already been recorded. Therefore, in such circumstances if the court below has directed the substitution on moving formal application for recording the names of the legal representatives of the deceased in this appeal, it cannot be found that such order is erroneous requiring interference in writ proceeding. The order is wholly correct and cannot be interfered with.

The petition is without any substance and is hereby dismissed.




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