Judgment:
ORDER
R.K. Merathia, J.
1. Office had raised the question of maintainability. On 23.11.2006, notices were issued to the respondents in admission matter.
2. With consent of the parties, this appeal was heard finally and is being disposed of by this order.
3. This appeal is directed against the order dated 15.4.2006, passed in Partition Suit No. 4/1990 by learned Sub-Judge-1. Bermo at Tenughat rejecting the petition dated 7.3.2006 filed on behalf of the plaintiff/decree holder under Order XXII, Rule 3 of the Code of Civil Procedure.
4. Mr. Atanu Banerjee, learned Counsel appearing for the plaintiff-appellant, relying on : (1995)1SCC407 , Ratna @ Ratnavati (Smt.) v. Syndicate Bank, submitted that the sole defendant-Bhagtu Hazam died during pendency of preparation of final decree and therefore in view of the said judgment, the learned Court below should not have rejected the prayer for substitution and should not have dismissed the proceeding as abated.
5. Mr. C.S. Prasad, learned Counsel appearing for the respondents, on the other hand supporting the impugned judgment submitted that wrong statements were made oh behalf of the plaintiff-appellant before the Court below on affidavit that Bhagtu Hazam died two months back prior to the filing of the petition for substitution on 7.3.2006, whereas he had died 2 and 1/2 years ago i.e. on 30.11.2003. He further submitted that no grounds were made out for condoning the delay in filing such petition. He also submitted that plaintiff-appellant has not been pursuing the case with due diligence.
6. It appears that plaintiff-appellant filed the suit in question for partition which was decreed by judgment and decree dated 28.11.1990, holding that plaintiff and defendant were entitled to half share each. No appeal was filed by any of the parties against the said judgment. A proceeding for preparation of final decree started. During such proceeding. defendant-Bhagtu Hazam died on 30.11.2003. It is true that a petition was filed after long delay of about 2 and 1/2 years i.e., on 7.3.2006 for substitution of legal heirs of defendant-Bhagtu Hazam without explaining the delay. It is also true that wrong statements were made in the petition that defendant died only two months back. However in view of the said Judgment of Ratna @ Ratnavati (Smt.) (supra) and in the interest of justice, in my opinion, the heirs of Bhagtu Hazam should be brought on the record. ,
7. Accordingly, the impugned judgment is set aside and the heirs of defendant (respondents herein) are substituted in his place in the proceeding for preparation of final decree. However, this order will be subject to payment of cost of Rs. 2,000/-(Two thousand only) to the respondents in the learned Court below within four weeks from today.
8. With these observations and directions, this appeal is disposed of.