Annapurna Debi & Ors vs Madho Nayak & Ors
2023 Latest Caselaw 1706 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               S.A. No. 570 of 2018
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Annapurna Debi & Ors. .... .... .... Appellants Versus Madho Nayak & Ors. .... .... .... Respondents

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellants : Mr. Ankit Vishal, Advocate

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Order No.08 Dated- 24.04.2023 I.A. No.9789 of 2019 Learned counsel for the appellants submits that this interlocutory application has been filed with a prayer to substitute the legal representatives of the deceased respondent no.5- Mumtaj Ali which has been renumbered as respondent no.11 subsequently by way of correction of the appeal memo. It is submitted that respondent no.11- Mumtaj Ali died on 28.08.2019 leaving behind his only four legal representatives whose names, parentage and addresses have been mentioned at paragraph no.3 but inadvertently, their address has been misprinted both P.O. and P.S. as Gomoh Hariharpur in this interlocutory application but the learned counsel for the appellants submits that P.O. is Gomoh and P.S. is Hariharpur. It is further submitted by the learned counsel for the appellants that the prayer for substitution has been made on 17.10.2019 hence, the prayer for substitution is within time. It is further submitted that unless the prayer to substitute the only four legal representatives of the deceased respondent no.11 is allowed, the appellants will be highly prejudiced.

Considering the aforesaid facts and circumstances of the case, the prayer to substitute the only four legal representatives of the deceased respondent no.11 whose names, parentage and addresses have been mentioned at paragraph -3 of this interlocutory application as respondent nos. 11 (a) to 11 (d) is allowed.

Registry is directed to incorporate the names, parentage and addresses of the said respondent nos. 11 (a) to 11 (d) in the cause title of the appeal memo with red ink and mention the word 'dead' against the name of the deceased respondent no.11.

This interlocutory application is disposed of accordingly.

(Anil Kumar Choudhary, J.)

I.A. No.3026 of 2023 Learned counsel for the appellants submits that this interlocutory application has been filed with a prayer to extend the time for further period of four weeks to remove the defect at serial nos. 5 and 8 as pointed out by the stamp reporter dated 19.02.2020.

Learned counsel for the appellant submits that the defect no.5 is that parentage name and detailed address with P.O. and P.S. of respondent nos. 5 (since deceased during the pendency of this second appeal), 6, 8, 9, 10 and 11 are missing in the certified copy of the judgment of the appellate court. It is next submitted that in the judgment under appeal a common address of respondent nos. 5 to 12

(d) has been mentioned including P.S.- Hariharpur and Gomoh but it has not been specifically mentioned that the P.O. is Gomoh. It is next submitted that the respondent nos. 5, 6 and 8 to 11 are all sons of late Asraf Ali and the respondent no.7 in the decree under appeal is the wife of late Asraf Ali but inadvertently, the same has been left out in the judgment under appeal. Hence, it is submitted that the defect at serial no.5 be ignored.

Considering the aforesaid facts, the defect pointed out at serial no.5 is ignored and it is ordered that the respondent nos. 11 (since deceased during the pendency of this second appeal) and 12 and 14 to 17 be treated as sons of late Asraf Ali.

It is next submitted by the learned counsel for the appellants that defect no. 8 is that the respondent no.14 (a) and 15 appears to be same person in the certified copy of the judgment of the trial court.

It is then submitted by the learned counsel for the appellants that Smt. Sundari Devi wife of late Nanhu Sao was the party to the Civil Appeal No. 37 of 2000 being the respondent no.15 and Nanhu Sao was the respondent no.14 but upon death of Nanhu Sao at the time of substitution of the legal representatives of Nanhu Sao inadvertently, the respondent no.15 Smt. Sundari Devi who is the wife of Nanhu Sao was again impleaded as legal representatives of the deceased Nanhu Sao as well. So the respondent no. 14 (a) and 15 of the judgment under appeal is one and the same person but inadvertently, in this appeal memo, the appellant has impleaded the same persons as respondent nos. 23 and 27 and prays for six weeks' time to file appropriate application for deleting the name of either the respondent no. 23 or respondent no.27.

List this appeal after six weeks for removal of the defect pointed out at serial no. 8.

(Anil Kumar Choudhary, J.)

I.A. No.3027 of 2023 Learned counsel for the appellants submits that this interlocutory application has been filed with a prayer to ignore the defect as pointed out at serial nos. 2 and 3 of the stamp reporter dated 10.01.2019 and also the defect no.3 pointed out by the stamp reporter dated 19.02.2020.

It is next submitted by the learned counsel for the appellants that the impugned judgment in Civil Appeal No. 37 of 2000 has been passed in an appeal preferred by the appellants against the order dated 04.08.1999 of the Munsif 2nd, Dhanbad whereby and where under, the application filed by the respondents/objectors under Section 47 read with Order XXI Rule, 97, 98, 99 and 101 of the Code of Civil Procedure in Execution Case No. 4 of 1986 has been allowed.

It is next submitted that the defect at serial no. 2 is that date of decree signed of the decree of appellate court may be given at aggrieved and prayer portion and the defect no. 3 dated 10.01.2019 is that decree signed date of the decree of trial court may be given at aggrieved and prayer portion as also the defect no.3 dated 19.02.2020 is that the name of respondent no. 3 died be deleted.

It is then submitted by the learned counsel for the appellants that since this Court has allowed I.A. No. 9789 of 2019 for substitution of the legal representatives of the deceased respondent no. 5 who has been renumbered as respondent no.11 namely Mumtaj Ali hence, the defect no.3 pointed out by the stamp reporter dated 19.02.2020 be ignored. It is then submitted by the learned counsel for the appellants that since the mandate of law as per order XXI Rule 103 which reads as under:-

103. Orders to be treated as decrees.--Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.]

Is that, orders passed under Rule 98 or Rule 100 shall have the same force and be subject to the same condition as to an appeal or otherwise as if it were a decree. So no separate decree either by the Munsif 2nd or by the District Judge, Dhanbad in Title Appeal No. 37 of 2000 has been passed. Hence, the appellant cannot mention the date of signing of the decree as separate decree has not been prepared. Hence, it is submitted that the defect pointed out at serial nos.2 and 3 dated 10.01.2019 be also ignored as well.

Considering the aforesaid facts, the defect pointed out at serial no.

2 and 3 dated 10.01.2019 and defect no.3 dated 19.02.2020 are all ignored.

This interlocutory application is disposed of accordingly.

(Anil Kumar Choudhary, J.)

S.A. No. 570 of 2018

Heard the parties.

The learned counsel for the appellants prays for six weeks' time to remove the remaining defects as pointed out by the stamp reporter.

The appellants are directed to remove the remaining defects as pointed out by the stamp reporter within six weeks, failing which, this appeal shall stand dismissed without further reference to the Bench.

Sonu-Gunjan/-                          (Anil Kumar Choudhary, J.)