The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 96 of 2015 I.A. Nos. 1160/2022, 1161/2022,1162/2022, 339/2023 and 1181/2023 An appeal under Section 100 Code of Civil Procedure. --------------- Asit Kumar Pattanaik & Others .… Appellants -Versus- Purna Chandra Pattanaik and Others ..… Respondents Advocate(s) appeared in this case:- _______________________________________________________ For Appellants : M/s. S.P. Mishra, Sr. Advocate S. Mishra, R. Agarwal, G.N. Parida & B. Behera, Advocates For Respondents : M/s. P.K. Mohapatra, S. Mohanty A. Mohapatra, B. Mishra & S.K. Dash, Advocates (for R.Nos. 1 to 10) _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 11.04.2025 All these Interlocutory Applications are intricately Page 1 of 9 connected with each other and being heard together are
Decision
disposed of by this common order. 2. To indicate briefly, I.A. No.1162 of 2022 is an application filed for substitution of deceased Respondent No.9 by her legal heirs. I.A. No. 1160 of 2022 is an application for setting aside the order of abatement of the appeal as against Respondent No.9. I.A. No. 1161 of 2022 is an application seeking condonation of delay in filing the application for substitution. I.A. No. -339 of 2023 and 1181 of 2023 are applications seeking extension of order of stay of further proceedings of the Execution Case. 3. A brief reference to the relevant facts would be in order at the outset. 4. The suit filed by the plaintiff-respondent No.1 for partition of the scheduled property was preliminarily decreed by the trial court [Civil Judge (Senior Division), Angul] in Title Suit No. 1 of 2000 vide judgment passed on 22.02.2006. Said judgment and decree came to be confirmed in appeal decided by the learned Addl. District Judge, Angul in RFA No. 11 of 2006 by judgment dated 24.08.2007, against which the defendant-respondents Page 2 of 9 have preferred RSA No.496 of 2007 before this court. In the absence of any order of stay, the trial court drew up Final Decree on 14.12.2010, against which, the defendant-respondents filed RFA No.-2 of 2011 before the learned Addl. District Judge, Angul. Said appeal being dismissed vide judgment dtd. 20.01.2015, the instant second appeal (RSA No. 96 of 2015) has been filed. During pendency of the appeal respondent No.9-Basanti Devi died on 30.11.2017 which was not supposedly within the knowledge of the appellants. The appeal being listed on 26.09.2019, when lawyers were abstaining from court work, on call, by the High Court Bar Association, came to be abated as against Respondent no.9 which was also not within the knowledge of the appellants. On being so aware, the appellant filed a memo in this Court on 11.07.2018 informing the above fact. The appellants filed an application being I.A. No. 705 of 2019 purportedly under Order V Rule 20 of CPC seeking paper publication of the notice on the legal heirs, which was later dismissed as not pressed but as the legal heirs of the deceased Respondent No. 9 appeared in the connected Execution Page 3 of 9 Case relating to the preliminary decree, the appellants took steps for substitution by filing these I.A.s. 5. Written objections have been filed on behalf of the respondents questioning the maintainability of the petitions and also the correctness of the grounds raised seeking condonation of delay. 6. Heard Mr. S.P. Mishra, learned Senior Counsel with Mr.R. Agarwal for the appellants and Mr. P.K. Mohapatra, learned counsel for the respondents. 7. Mr. Mishra would argue that I.A. No. 705 of 2019 was filed by the appellants on wrong legal advice. Instead of filing application under Order XXII Rule 4 of CPC, the petition was filed under Order V Rule 20. This is entirely a mistake of the conducting counsel for which the party should not suffer as per the settled position of law. In this context, Mr. Mishra has cited several judgments to support his contentions. On the question of condonation of delay Mr. Mishra would argue that IA. No. 705 of 2019, though filed wrongly, was never listed for hearing and the appellants were unaware of the order of abatement passed on 26.09.2019. That apart, the appellants though came to Page 4 of 9 know about the death of the respondent No.9 on 20.03.2019, yet could not ascertain the particulars of her legal heirs so as to take steps to bring them on record. Under such circumstances, I.A. No. 705 of 2019 was filed. Thus, no negligence or willful delay on the part of the appellants can be attributed. Mr. Mishra closes his argument by submitting that the appeal has been admitted and a substantial question of law has been framed and as such, if the appeal is heard on merits, no prejudice would be caused to the other side. 8. Mr. P.K. Mohapatra has vehemently objected to the contentions raised by Mr. Mishra by submitting that the very conduct of the appellant disentitles him from any relief whatsoever, much less than the relief claimed in the four interlocutory applications. Mr. Mohapatra further submits that the appellant has also resorted to falsehood in his application for condonation of delay inasmuch as he was well aware of the fact of death of respondent No.9 on 30.11.2017 being her nephew/niece. The appellant No.2 had also attended the obsequies and sradha ceremony of the deceased respondent. Therefore, the plea taken that Page 5 of 9 they were not aware of the death of deceased respondent No.9 is unacceptable. These petitions have been filed with the intent to delay the execution of the decree. The executing court, vide order dated 19.09.2023 has directed delivery of possession of the shares as per the decree. 9. I have given my anxious consideration to the averments in the instant applications as also contentions raised on behalf of the parties. 10. Coming to the question of delay, undisputedly, respondent No.9 died on 30.11.2017. As already stated, no steps were taken to substitute the deceased respondent. An application was filed being IA. No. 705 of 2019. Said application was filed purportedly under Order V Rule 20 of CPC, dismissed as not pressed as per order dtd. 18.09.2023. It is needless to mention that pendency of an application, which is inherently not maintainable in law cannot enure to the benefit of the applicant. It is stated that said application was filed on wrong legal advice by the conducting counsel and that the party should not suffer for the mistake committed by the lawyer. There is no quarrel with above proposition but then, Page 6 of 9 having filed a second appeal and participated in hearing on the question of admission, resulting in admission of the appeal on a substantial question of law, it is scarcely believable that the conducting counsel at the relevant time was so ignorant of law as to file an application under Order V Rule 20 instead of Order XXII Rule 4. This Court is unable to accept the above plea. Even otherwise, it has been contended that though the appellant became aware of the death of respondent No.9 much later, whereabouts of her legal heirs could not be ascertained. This is again hardly believable inasmuch it has not been disputed that the appellants and respondent No.9 are closely related being aunt and nephew/niece. In fact, the suit itself was filed for partition of the ancestral joint family properties. It is therefore, difficult to believe that despite knowing who the legal heirs are, the appellants would not be aware of their whereabouts so as to file a proper application for substitution for as long as four years. 11. In the objection filed by the respondents it has been stated that the appellant had attended the obsequies and sradha of the deceased-respondent. This has not been Page 7 of 9 specifically denied. Thus, from the foregoing discussion, it is evident that the appellants are guilty of gross delay and laches in prosecuting the appeal filed by them. The grounds urged are not convincing enough to pursuade this Court to accept the same. 12. In the result, this Court finds no merit in the application for condonation of delay in filing the application for substitution (I.A. No. 1161 of 2022), and the same is accordingly dismissed. Consequently, I.A. Nos. 1162 and 1160 of 2022 are also dismissed. 13. This Court, by order dated 25.08.2022 passed in the second appeal (RSA No.496 of 2007) arising out of the preliminary decree, has already held that the decree being indivisible and there being abatement of the same as against Respondent No.9, the appeal cannot proceed further against the rest of the respondents for which the said appeal , as a whole was held to have abated . On the same analogy, the final Decree being also indivisible and the present appeal having abated as against Respondent No.9, cannot continue in respect of the other respondents. The present appeal is thus, held to have abated in its Page 8 of 9 entirety. As a consequence, I.A. Nos. 339 of 2023 and 1181 of 2023, are also dismissed. ……..………………….. Sashikanta Mishra, Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Apr-2025 15:42:57 Page 9 of 9