heirs of the appellant no. 4 as the appellants. The present appellants along with the deceased appellant no. 4 as the plaintiffs filed the original suit which was dismissed. The said appellants preferred Title Appeal No. 41/2006 in the court of learned Civil Judge, Dibrugarh. During the pendency of the said appeal, the appellant no. 4, Md. Harun Islam died on 30.11.2013 leaving behind the legal heirs, - (1) Smti Firoza Khatun, wife; (2) Ms. Tasnim Kauser, daughter and (3) Master Aftabul Islam, son. At that relevant point of time the children of the appellant no. 4 were minors. An application for substitution of the said appellant no. 4 was filed in the first appellate court in T.A. 41/2006 which was registered as MC No. 3707/2013. It is submitted by Ms. Sarma that no order was passed in the said MC 3707/2013 by the first appellate court and as a result T.A. No. 41/2006 was dismissed vide judgment and decree dated 03.05.2017 but on merit. As there was no substitution, the decree passed by the first appellate court recorded the name of the appellant no. 4 and as such while filing this appeal the name of the appellant no. 4 is shown in the cause title of the connected second appeal. Later on, as submitted by Ms. Sarma while preparing to file an application under Order XXXIX of the CPC the aforesaid fact of the death of appellant no. 4 that too, during the pendency of the first appeal came to the notice of the learned counsel. As appropriate application was filed before the first appellate court and that too, well within the prescribed period of limitation, the appeal cannot be held to be abated as submitted by Ms. Sarma. However, this petition is filed under Order I Rule 10 of the CPC in order to bring the legal heirs of the deceased appellant no. 4 on record.
