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IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.42 of 1989 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Kausalya Singh (dead) & Others …. Appellants Srinath Ch. Sahu (dead) & Others …. Respondents -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Dr. S. Dash, Advocate. For Respondents - None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :04.01.2024:: Date of Judgment :09.02.2024 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The appellants of this Second Appeal were the defendants before
Legal Reasoning
the Trial Court in the suit vide O.S. No.22 of 1966-II and they were the appellants in the First Appeal vide M.A. No.23 of 1984-I. The respondents of this Second Appeal were the plaintiffs before the Trial Court in the suit vide O.S. No.22 of 1966-II and they were the respondents in the First Appeal vide M.A. No.23 of 1984-I. SA No.42 of 1989 Page 1 of 12 {{ 2 }} 3. The suit of the plaintiffs (those are the respondents in this Second Appeal) vide O.S. No.22 of 1966-II before the Trial Court was a suit for passing of a mortgage decree. 4. The factual backgrounds of this Second Appeal as per the materials on record are that, after passing of the preliminary decree in O.S. No.22 of 1966-II by the Trial Court in favour of the plaintiffs and against the defendants, final decree proceeding was continued before the Trial Court in that suit vide O.S. No.22 of 1966-II for making the preliminary decree final. After passing of the Preliminary decree in O.S. No.22 of 1966-II and during the pendency of final decree proceeding of the suit vide O.S. No.22 of 1966-II (FD) before the Trial Court, the defendant Nos. 3 & 4 expired, but the plaintiffs did not take any step to substitute their LRs and without, substituting the legal heirs (LRs) of the deceased defendant Nos. 3 and 4, they (plaintiffs) proceeded with the final decree proceeding of O.S. No.22 of 1966-II(FD). So, the Defendant Nos.6, 11, 12 & 14 filed a petition before the Trial Court in that final decree proceeding of O.S. No.22 of 1966-II(FD) praying for dismissal of the final decree proceeding on the ground of abatement of that final decree proceeding as a whole, for non-substitution SA No.42 of 1989 Page 2 of 12 {{ 3 }} of the legal heirs of the defendant Nos.3 & 4, as the Preliminary decree was passed in respect of the undivided shares of all the defendants including the deceased defendant Nos.3 & 4. But the Trial Court rejected the said petition of the defendants for dismissal of the final decree proceeding vide O.S. No.22 of 1966-II(FD) on the ground abatement of the same as a whole for non-substitution of the LRs of defendant Nos.3 & 4 as per its order dated 03.08.1982 by assigning the reasons that, substitution of the LRs of defendant Nos.3 and 4 are not necessary due to in-applicability of Rule 4 of Order 22 of the CPC to the final decree proceeding for substitution of the LRs of the deceased defendant Nos.3 & 4, because, they (defendant Nos.3 & 4) have expired after the passing of the preliminary decree of that O.S. No.22 of 1966-II and during the pendency of final decree proceeding thereof. On being dissatisfied with the above order dtd.03.08.1982 passed in O.S. No.22 of 1966-II(FD) by the Trial Court rejecting the petition of the defendants for dismissal of the final decree proceeding as a whole on the ground of abatement, they (defendants) challenged the same by preferring the 1st appeal vide M.A. No.23 of 1984-I being the appellants against the plaintiffs by arraying them (plaintiffs) as respondents. SA No.42 of 1989 Page 3 of 12 {{ 4 }} The 1st Appellate Court dismissed that 1st Appeal vide M.A. No.23 of 1984-I of the defendants vide its Judgment and Decree dtd.06.09.1988 and 14.09.1988 respectively accepting the findings and observations made by the Trial Court in its order dtd.03.08.1982 passed in O.S. No.22 of 1966-II against the defendants for continuance of the final decree in O.S. No.22 of 1966-II(FD) without substituting the LRs of the deceased defendants 3 and 4 by placing reliance in the ratio of the decisions of the Hon’ble Courts reported in AIR(32) 1945(Patna) Raghunandan Sahu and others vs. Badri Pandey and Others and AIR (35) 1948(Calcutta) Bhuban Chandra Mandal vs. Chhabirani Das assigning the reasons that, as the defendants Nos. 3 & 4 have expired after passing of the preliminary decree and during the pending of final decree in O.S. No.22 of 1966-II (FD), the provisions of Rule 4 of Order 22 of the CPC are not applicable for substitution of their legal heirs. 5. On being aggrieved with the aforesaid Judgment and Decree of dismissal of the 1st Appeal of the defendants vide M.A. No.23 of 1984-I passed by the 1st Appellate Court on dated 06.09.1988 and 14.09.1988 respectively, they (defendants) challenged the same by preferring this 2nd Appeal being the appellants against the plaintiffs by arraying them (plaintiffs) as respondents. SA No.42 of 1989 Page 4 of 12 {{ 5 }} This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. “Whether the final decree passed by the courts below in the suit vide O.S. No.22 of 1966-II without substituting the LRs of the defendant Nos.3 and 4 and rejecting the petition of the defendants for dismissal of the final decree proceeding on the ground of non- substitution of the LRs of the defendant Nos.3 and 4 vide order dated 03.08.2022 passed by the trial court in O.S. No.22 of 1966-II and confirmation to the same by the 1st Appellate Court in M.A. No.23 of 1984-I is legal, valid and binding?” 6. I have already heard from the learned counsel for the appellants (defendants) only, as none appeared from the side of the (respondents/plaintiffs). 7. It appears from the materials available in the record including from the order dated 03.08.1982 passed by the trial court in O.S. No.22 of 1966-II that, after passing of the preliminary decree in that suit vide O.S. No.22 of 1966-II and during the pendency of the final decree proceeding thereof before the trial court, the defendant Nos.3 and 4 have expired leaving behind their LRs and their LRs are alive. Though the defendants filed petition before the trial court in the final decree proceeding vide O.S. No.22 of 1966-II praying for dismissal of that final decree on the ground of abatement of that final decree SA No.42 of 1989 Page 5 of 12 {{ 6 }} proceeding as a whole for non-substitution of the LRs of defendant Nos.3 and 4 by the plaintiffs, to which, as per order dated 03.08.1982, the trial court rejected assigning the reasons that, where the defendants in a suit like the defendant Nos.3 and 4 expire after passing of the preliminary decree and during the pendency of the final decree, then, in such a situation, the final decree shall not abate for non-substitution of their LRs as per the provisions of law envisaged in Order 22, Rule 12 of the CPC, 1908. Because, the Order 22, Rule 4 of the CPC for substitution of the LRs of the defendants are not applicable to the final decree proceedings. The 1st Appellate Court accepted to the aforesaid observations made by the trial court vide its Order dated 03.08.1982 in the Judgment and decree of the 1st Appeal vide M.A. No.23 of 1984-I by placing reliance in the ratio of the decisions of the Hon’ble Courts reported in AIR (32) 1945 Patna, 380 & AIR (35) 1948 Calcutta 363. As per Orissa High Court Amendment to the Rule 12 of Order 22 of the CPC, “the provisions of Order 22 Rule 4 for substitution of the LRs deceased defendants are not applicable in the final decree proceedings”. It is the settled propositions of law that, the object/meaning of the Civil Procedure Code is that, the same is a law relating to procedures and SA No.42 of 1989 Page 6 of 12 {{ 7 }} the procedural law is always intended to facilitate the process of achieving the ends of justice. Therefore, the courts would normally favour the interpretation of the CPC, which will achieve its above object. Rules and procedures are handmaid of justice. Because, rules are enacted not to thwart justice but to ensure that, court is assisted in its search for truth and justice is done to the parties. On this aspect the propositions of law has already been clarified in the ratio of the following decisions: I) 2011 (2) OJR SC 645—Mahadev Govind Gharge & Others Vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka (Para No.19). “Civil Procedure Code, 1908—The Code is a law relating to procedure and procedural law is always intended to facilitate the process of achieving the ends of justice—The courts would normally favour the interpretation which will achieve the said object.” II) 2012 (1) CLT 28 (Himachal Pradesh)—Jyoti Prakash Vs. Kamal Kant (Para No.12). its object/purpose—"Rules of “Rules of procedure and procedure” are the handmaiden of justice. Rules are enacted not to thwart justice, but to ensure that, the court is assisted in its search for truth and justice is done to the parties.” 8. The law relating to substitution of the LRs of the defendants, when the defendants expire after the preliminary decree and during the pendency of the final decree has already been clarified in the ratio of the following decisions: SA No.42 of 1989 Page 7 of 12 {{ 8 }} I) AIR 1961 Orissa Page 140—Jagannath Vs. Sudarsan, AIR 1962 (Patna) 178—Ramsewak Mishra & Another Vs. Mt. Deorati Kuer & Others, AIR 1990 Orissa 36 & 1989 (1) OLR 571—Saria Bewa Vs. Balaram Puhan & Others (Para No.11). “CPC, 1908 Order 22 Rule, Rule 3,4,8 and 12—There would be no question of abatement of final decree, since the death of defendant No.2 occurred after the preliminary decree is passed and during the pendency of the final decree proceeding. But his LRs were necessary parties in the final decree proceeding in whose absence the proceeding could not be continued. This situation can be equated with a case where final decree proceeding is initiated and continued without notice to the parties to the proceeding. The only effect of Orissa Amendment to Order 22, Rule 12, CPC is that Rules 3,4 and 8 of the said Order do not apply to the final decree proceeding. But it does not sanction that, the final decree proceeding shall continue without the legal representatives of a deceased party whose interest is likely to be affected by the final decree. The final decree passed in the absence of necessary parties must be held to be a nullity as it dealt with the rights of the parties without notice to them and in their absence.” II) 2004 (Supp.) OLR 460—Jitendra Ballav Burdhan Vs. Dhirendranath Burdhan & Others (Para No.10). “CPC 1908—Order 22, Rule 12—(Orissa High Court Amendment)—Whether provisions of Order 22, Rule 12 for substitution are applicable to a final decree proceeding?—Held, effect of Orissa the only Amendment to Order 22, Rule 12, CPC is that, Rule 3,4 & 8 of the said Order do not apply to the final decree proceeding—But, it does not sanction that, the final decree proceeding shall continue without the Legal representation of a deceased party, whose interest is likely to be affected in the final decree.” By taking into account to the new provisions of law inserted/added into the provisions of Rule 12 of Order 22 of the CPC through Orissa High Court Amendment regarding the in-applicability of Rule 4 of Order Page 8 of 12 SA No.42 of 1989 {{ 9 }} 22 of CPC for substitution of the LRs of the deceased defendants on their expiry after the preliminary decree and during the pendency of the final decree has already been clarified by the Hon’ble Courts in the ratio of the aforesaid decisions that, the provisions of law made through Orissa High Court Amendment regarding the inapplicability of Order 22, Rule 3,4 and 8 for substitution of the LRs of the deceased parties (those expire after passing of the preliminary decree and during the pendency of the final decree) does not sanction that, the final decree proceeding shall continue without legal representative of the deceased-party, whose interest is likely to be affected in the final decree. 9. As per the clarifications made above by the Hon’ble Courts in the ratio of the above decision reported in 2004 (Supp.) OLR 460 placing reliance upon the ratio of the earlier decision reported in AIR 1990 (Orissa) 36 that, the insertions of the new provisions into Order 22, Rule 12 of the CPC 1908, through Orissa High Court Amendment regarding the in-applicability of Rules-3,4 & 8 of Order 22 of the CPC 1908 to the final decree proceeding shall not debar/preclude the courts from substituting the legal heirs of the parties, whose interests are likely to be affected by the drawal of the final decree, because, the law does not sanction for continuance of the final decree proceedings without SA No.42 of 1989 Page 9 of 12 {{ 10 }} substituting the legal heirs of the deceased parties including the deceased defendants. Therefore, in case of the death of any party during the pendency of final decree, whose interests are likely to be affected by the drawal of the final decree, the substitution of their LRs are compulsory and mandatory. When, time and again, it is the considered view of our own Hon’ble Courts as per the ratio of the catena of decisions indicated above in Paragraph No.8 of this Judgment that, in case of death of any of the affected parties after preliminary decree and during the pendency of the final decree, the substitution of his/her legal heir is compulsory and mandatory, then at this juncture, the views taken by the trial court and 1st Appellate Court by placing reliance in the ratio of the decision reported in AIR (32) 1945 (Patna) 380 and AIR (35) (Calcutta) 363 that, the final decree shall not abate in spite of non-substitution of the LRs of defendant Nos.3 and 4, as they (defendant Nos.3 & 4) have expired after preliminary decree and during the pendency of final decree, cannot be sustainable/acceptable under law. 10. When, undisputedly the defendant Nos.3 and 4 have expired during the pendency of the final decree proceeding of O.S. No.22 of 1966-II(FD) and when, their LRs are alive and when, the plaintiffs have not taken any SA No.42 of 1989 Page 10 of 12 {{ 11 }} step for substitutions of the LRs of the defendant Nos. 3 and 4 during the pendency of the final decree proceeding and when, as per the discussions and observations made above, the substitution of the legal heirs of the defendant Nos.3 and 4 by the plaintiffs was mandatory and compulsory and when, the LRs of the deceased defendant Nos.3 & 4 shall be affected by the drawal of the final decree and when the Trial Court has rejected to the petition of the defendants vide its order dtd.03.08.1982 holding that the final decree shall not abate in spite of non-substitution of the LRs of the deceased defendant Nos. 3 and 4 and when the 1st Appellate Court has confirmed the said order dtd. 03.08.1982 of the trial court vide its judgment and decree passed in M.A. No.23 of 1984-I and when it is held that, the above findings and observations made by the trial court and 1st Appellate Court have become inacceptable under law, then at this juncture, by applying the principles of law enunciated by this Hon’ble Courts in the ratio of the decisions reported in AIR 1961 Orissa 140, AIR 1989 (1) OLR 571, AIR 1990 Orissa 36 & 2004 (Supp.) OLR 460, to the final decree proceeding in O.S. No.22 of 1966-II at hand, it is held that, the order dtd.03.08.1982 passed by the Trial Court in the final decree proceedings of O.S. No.22 of 1966-II(FD) for continuation of that final decree proceeding without abating the same as a whole for non- SA No.42 of 1989 Page 11 of 12 {{ 12 }} substitution of the LRs of defendant Nos.3 & 4 and the confirmation to the same by the 1st Appellate court through its judgment and decree passed in M.A. No.23 of 1984-I cannot be sustainable under law. For which, there is justification under law for making interference with the same through this Second Appeal filed by the defendants. Therefore, there is merit in this 2nd appeal of the appellants (defendants). The same must succeed. 11. In the result, the Second appeal filed by the appellants/defendants is allowed on merit. 12. The order dtd.03.08.1982 passed by the Trial Court in the final decree proceeding of O.S. No.22 of 1966-II and the confirmation to the same by the 1st Appellate Court through its Judgment and Decree dated 06.09.1988 and 14.09.1988 respectively passed in M.A. No.23 of 1984-I are set aside with a clarification that, the final decree proceeding in O.S. No.22 of 1966-II (FD) before the trial court had abated as a whole as per law for non-substitution of the legal heirs of the defendant Nos.3 & 4. Orissa High Court, Cuttack. Binayak Sahoo// Junior Stenographer & Signature Not Verified Rati Ranjan Nayak// Senior Stenographer 09.02.2024 Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 13-Feb-2024 15:10:28 SA No.42 of 1989 (A.C. Behera), Judge. Page 12 of 12