High Court of Judicature at Allahabad
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Onkar Singh v. Smt. Ram Bhateri & Others - WRIT - C No. 59741 of 2005  RD-AH 2557 (8 September 2005)
Hon'ble Anjani Kumar, J.
Heard learned counsel for the petitioner.
The petitioner has approached this Court by means of this writ petition under Article 226 of the Constitution of India being aggrieved by an order passed by the appellate court where during the pendency of appeal one of the parties died, then question of substitution was raised. Learned counsel for the petitioner submitted that in such a situation under the provisions of Order 22 Rule 5 of Code of Civil Procedure, which is quoted below, the appellate court should have transferred the proceedings to the trial court to decide the question of substitution:-
"Order 22, Rule 5. Determination of question as to legal representative._ Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court :
Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question."
In the present case by the impugned order the appellate court has stated that since substitution has been claimed on the basis of a Will, unless the Will is probated or a letter of administration is granted, the question of substitution cannot be determined. In this view of the matter the application filed by the petitioner is rejected.
I do not find any error in the order of the appellate court which may warrant interference by this Court under Article 226 of the Constitution of India. This writ petition has no force. It is accordingly dismissed.
mhu - 59741/05
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