Neutral Citation No. - 2025:AHC-LKO:29081 Court No. - 6 Case :- MATTERS UNDER ARTICLE 227 No. - 9569 of 2019 Petitioner :- Shama Begum Respondent :- Musammat Madni Begum And Ors. Counsel for Petitioner :- Rajeiu Kumar Tripathi Counsel for Respondent :- Aftab Ahmad,Savitra Vardhan Singh,Shafiq Mirza,Umesh Kumar Shukla,Yogesh Chandra Srivastava Hon'ble Pankaj Bhatia,J. I.A. Nos.8, 9 and 10 of 2023 1. This substitution application has been filed seeking substitution of the legal heirs of deceased-respondent No.2 along with application seeking condonation of delay and setting aside abatement. 2. The cause shown is sufficient. 3. The applications are allowed. 4. Accordingly, the delay is condoned and abatement is set aside qua respondent No.2. The application for substitution shall stand allowed. 5. Let necessary correction be carried out in the array of the parties during the course of the day. Order on Petition 6. Heard learned counsel for the petitioner and Shri Yogesh Chandra Srivastava, learned counsel for respondent Nos.7 to 10. 7. The present petition has been filed by the petitioner challenging an order dated 14.03.2019, whereby the application filed by the petitioner seeking transposition against the petitioner was rejected and application filed by the appellant for withdrawing the appeal was allowed. 8. The facts, in brief, are that a suit was filed inter-se in between the parties being Suit No.109 of 1983. The said suit was for partition of the properties. During the pendency of the suit, the petitioner purchased the property from one of the persons, who was the party to suit, namely, Chaudhary Ali Mubarak. Subsequently, the suit came to be decreed vide judgement dated 28.04.2009, in which it was held that Chaudhary Ali Mubarak, the predecessor-in-interest had no rights in the properties, which are partitioned. Challenging the said judgement dated 28.04.2009, Chaudhary Ali Mubarak preferred an appeal under Section 96 CPC. During the pendency of the appeal, the appellant died and thereafter, the wife of the appellant, namely, Madni Begum was substituted in his place. The petitioner claiming his rights through Chaudhary Ali Mubarak, also moved an application under Order 1 Rule 10 of CPC in the Civil Appeal No.77 of 2009, which was allowed and thereafter the petitioner continued to be a party in the appeal. 9. It is argued that subsequently, the widow of the main appellant, Chaudhary Ali Mubarak, the predecessor-in-interest of the petitioner moved an application No.Ka-113 seeking to withdraw the appeal. Simultaneously, the petitioner also preferred an application, which was numbered as C-120, seeking transposition in place of the appellant. Both the said applications have been disposed of by means of the impugned judgement. The impugned judgement records that the petitioner would be at liberty to agitate his rights in common law course, based upon the sale deed. The court also recorded that the sale deed executed during the pendency of the suit was barred by principles of lis pendens. 10. Be that as it may, the appeal is of the year 2009, the withdrawal of appeal would have adverse effect on the rights as claimed by the petitioner. This Court is not going into the merits of the contention of the petitioner at this stage, which shall be decided on merits by the appellate court. Considering the mandate of Order 23 Rule 1(A) of CPC, the petition deserves to be allowed. 11. The order dated 14.03.2019 is quashed. The application filed by the petitioner for transposition as an appellant, would stand allowed. 12. As the appeal is of the year 2009, the appellate court shall endeavour to decide the same expeditiously, preferably within a period of one year from today. 13. The petition stands disposed of in terms of above. Order Date :- 16.5.2025 Ashutosh Digitally signed by :- ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench Digitally signed by :- ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench