Heard argument of learned counsel for the parties on the point of admission of second appeal as well as framing substantial question of law and perused the records.
During argument, it was pointed out by the appellant side that plaintiff no. 2 of original suit, namely, Adya Prasad Awasthi S/o Prabhu Narain, who was respondent in first appeal no. 102 of 2004 preferred by defendants, had died during pendency of first appeal but he was not substituted, therefore, first appeal should have been treated as abated because the decree in favour of co-plaintiffs (co-respondents no. 1 and 2) cannot be separated, against which, present second appeal has been preferred by LRs of the said Adya Prasad Awasthi because judgement of first appellate court was against the respondents including deceased Adya Prasad Awasthi, who was predecessor in interest of present appellants of second appeal.
Admittedly, Adya Prasad Awasthi was not substituted in first appeal, but this Court is not in a position to verify this fact at this stage as to whether he was died during pendency of first appeal and was not substituted. This contention of appellants side cannot be said to be unacceptable that if first appeal had abated against its respondent no. 2 Adya Prasad Awasthi then whole of the appeal should have been dismissed as abated because interest of respondents no. 1 and 2 of first appeal were joint and inseparable. This points needs verification. For this point only, this appeal is admitted and following substantial question of law is framed.
"Whether the first civil appeal no. 102 of 2004 had abated when its deceased respondent no. 2 Adya Prasad Awasthi was not substituted and the judgment of first appeal was erroneous as being passed against dead person ? If so, its effect ?"
It is made clear that if this substantial question of law is decided in negative only then appeal will be heard on framing other substantial question of law, if any which may arise.
Summon the lower court records.
Parties may file affidavits/evidences in this abovmentioned substantial question of law within three weeks.
List this case on 27th July, 2016 for final hearing.
Till further orders, operation of the impugned judgment dated 6.2.2016 of first appellate court shall remain stayed.
Order Date :- 9.5.2016 Sanjeev