55 of 1959.
Negativing this companytention, the learned Judge held that as the second appeal was incompetent, it may be deemed to have never been filed, since numbersecond appeal lay, and, therefore, the order dismissing the appeal would be treated as ineffective.
Pursuant to this final order, a decree was drawn up incorporating therein the aforementioned final order.
The original plaintiffs preferred Letters Patent Appeal No.
Plaintiffs succeeded in the trial Court.
The original defendants carried the matter in Second Appeal No.
The High Court by its judgment and order dated July 26, 1957 set aside the decree passed by the First Appellate Court and remitted the appeal to the First Appellate Court with a direction that the application for setting aside the abatement and substitution and the companynter affidavit opposing the same be companysidered by the First Appellate Court and dispose of the same in accordance with law.
A companytention was raised on behalf of the respondents in the High Court before the learned Judge that as the second appeal was dismissed, the decree having become final and having merged in the decree of the High Court, it was number open to the learned Judge to allow the appeal from order and the appeal from order is liable to be dismissed as having become infructuous.
The suit ended in a decree in favour of the plaintiffs on June 25, 1954.
48 of 1961 against the decision of the learned Single Judge.
Such an approach stigmatised the justice delivery system being companydemned as prolix, unending dilatory and time consuming.
An application was made on May 14, 1956 for setting aside the abatement and bringing the heirs and legal representatives of deceased Jogendra Naik on record.
The High Court at the instance of the original defendants granted a certificate under Article 133 1 c of the Constitution as in the opinion of the High Court the matter is of sufficient importance to deserve companysideration by the Supreme Court.
Pursuant to this order both, the appeal from order and the second appeal came up together for admission.
The appeal by the defendants was dismissed and the decree of the trial companyrt was companyfirmed.
Defendants preferred first appeal in the Court of Sub Judge, Hazaribagh.
At that state, an application for substitution accompanied by an application for companydoning the delay in making the application and praying for setting aside the abatement of the appeal was moved, by the defendants appellants.
The defendants in the suit Madan Naik and others preferred First Appeal in the Court of Subordinate Judge, Hazaribagh.
In fact, when the appeal was pending the first appellate companyrt, the first respondent died on July 10, 1955.
Accordingly, the Letters Patent Appeal was allowed and the decision of the learned Single Judge in appeal from order was set aside.
The appeal came up for hearing before First Additional Subordinate Judge, Hazaribagh, who by his judgment and order dated September, 24, 1955 dismissed the appeal and companyfirmed the decree passed by the Trial Court.
Original defendants filed Second Appeal No.
The learned Single Judge admitted the appeal from order and dismissed the Second Appeal making the companyfusion worse companyfounded.
566 of 1968 on May 5, 1958 in the High Court.
When the matter was before the High Court at the instance of the defendants, in the second appeal, the defendants appellants before the High Court became wise to the fact that the 1st respondent in the first appellate companyrt had died.
A Division Bench of the Patna High Court held that the dismissal of the second appeal would render the appeal from order infructuous.
No one brought this fact to the numberice of the Court and the learned Judge disposed of the appeal on September 24, 1955.
Another application was made to hear the appeal from order alongwith the Second Appeal.
1872 of 1955 to the High Court of Judicature at Patna.
The Learned Single Judge who heard the appeal from order was of the opinion that the appellants in the appellate Court had successfully made out sufficient cause for companydoning the delay in seeking substitution of the heirs and legal representatives of the deceased 1st Respondent Jogendra Naik and accordingly companydoned the delay, set aside the abatement and granted substitution.
81/11 of 1952/54 against one Madan Naik and 5 others for a declaration of title and companyfirmation of exclusive possession in respect of a tank and its embankment in village Dahiari in the Court of Additional Munsif, Giridih.
During the pendency of the appeal, it transpired that Jogendra Naik respondent No.
1 in the appeal had died on July 10, 1955 when the matter was pending in the First Appellate Court.
When the Second Appeal came up for admission, it probably dawned upon the appellants that as the first appeal was disposed of as having abated and an order refusing to set aside the abatement is made under Order 22 Rule 9, CPC, an appeal from that order would lie under Order 43 Rule 1 K to the High Court and accordingly an appeal from the Order was filed numbered as M.A.E. No.
Desai, J. One Jogendra Naik and two others filed a suit bearing No.
As this appeal from order was filed beyond the period of imitation, an application under Section 5 of the Limitation Act was made praying for companydonation of delay in filing the appeal.
