Sl.104 15.09.2026 Court No.6 BP C.O. 2269 of 2026 Prem Nath Ambast -versus- Kalpana Ambast & Ors. Mr. Rabindranath Mahato Mr. Aritra Shankar Ray ..for the petitioner Ms. Mita Bag, ..for the opposite party no.1 This application under Article 227 of the Constitution of India is at the instance of the judgement debtor and is directed against an order dated 24th June, 2026 passed by the learned Civil Judge (Senior Division), Third Court, Paschim Medinipur in Title Execution Case No. 17 of 2025. By the order impugned, the application for substitution of the heirs of the defendant no.3 who died on 2nd August, 2018 was allowed to be brought on record in the execution proceeding by way of substitution. Mr. Mahato, learned advocate appearing for the petitioner submits that the defendant no.3 died during the pendency of the final decree proceeding but the heirs of the defendant no.3 were not substituted in the final decree proceedings. He therefore submits that unless the heirs of the defendant no.3 are substituted by the learned trial court in the final decree proceedings, the heirs of the defendant no.3 could not have been substituted in the execution proceedings. In support of such contention Mr. 2 Mahato places reliance upon an order dated 21st November, 2016 passed by the Hon’ble Division Bench in FMAT 368 of 2015 in the case of Arun Singh & Ors. vs. Patal Singh & Ors. Ms. Bag, learned advocate appearing for the opposite party no.1 produces the entire ordersheet in connection with the final decree proceedings in support of her contention that the application for substitution was duly filed and the heirs of the deceased defendant no.3 appeared by filing vakalatnama. Heard the learned advocates for the parties and perused the materials placed. It is not in dispute that the defendant no.3 died on August 2, 2018. The plaintiff in Title Suit No. 79 of 2012 filed a substitution petition on 16th August, 2018 for substituting the heirs of the deceased defendant no.3. Therefore, the application for substitution was filed within the stipulated time frame. After going through the order dated 16th August, 2018 passed in Title Suit No. 79 of 2012 this Court finds that on the date when the substitution application was filed, the legal heirs of the defendant no.3 also entered appearance by filing a vakalatnama. From the order dated 16th August, 2018 it further appears that 12th September, 2018 was fixed for hearing of the petition for substitution. No dispute has been raised by the petitioner as to whether any person is or is not the legal representative of the 3 deceased defendant no. 3. The application was also filed within prescribed period of limitation and the heirs of the deceased defendant no.3 also entered appearance on the date when the application for substitution was filed. Abatement of suit occurs if application for substitution was not filed within the time limited by law. In the case, where substitution application has been filed within time and no dispute has been raised as to whether the persons sought to be substituted are or are not the legal representatives of the deceased, this Court holds that the application for substitution though not expressly allowed by the learned trial judge in the final decree proceedings shall be deemed to have been allowed. That apart, the interest of the heirs of the deceased party cannot be said to have been prejudiced in the case on hand in the final decree proceedings as record reveals that the heirs of the deceased entered appearance through their learned advocate. It is not in dispute that the petitioner, who is the defendant no.1 in the suit for partition, has preferred an appeal being FAT 7 of 2026. On a query of the Court Mr. Mahato, learned advocate for the petitioner, in his usual fairness, submits that the heirs of the deceased defendant have also been impleaded as party respondents in the said appeal. In Arun Singh (supra) the appellate court passed an order of remand ignoring the fact that one of the 4 defendant/appellant died prior to the commencement of hearing of the appeal and her heirs were not substituted in the appeal. On such factual matrix the Hon’ble Division Bench held that the estate of the said deceased remained unrepresented at the time of hearing of the appeal before the learned appellate court and for such reason the Hon’ble Division Bench declined to entertain the appeal giving liberty to the appellant to approach the learned first appellate court to regularize the appeal after pointing out upon the death of one of the appellant during the pendency of the appeal the estate of the deceased remained unrepresented at the time of hearing of the said appeal. The said decision being distinguishable on facts cannot come to the aid of the petitioner. This Court has already observed that the heirs of the deceased defendant appeared in the final decree proceedings by filing the vakalatnama. Thus the estate of the deceased defendant no.3 cannot be said to remain unrepresented during final decree proceedings. The learned judge of the executing court was right in substituting the heirs of the deceased defendant no.3. This Court is not inclined to interfere with such order in exercise of power under Article 227 of the Constitution of India. Accordingly C.O. 2269 of 2026 stands disposed of. There shall be, however, no order as to costs. 5 Urgent certified photocopy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities. (Hiranmay Bhattacharyya, J.)