The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.12191 of 2022 Golak Bihari Barad & others ....... Petitioners -Versus- Surendra Kumar Sarma and another ....... Opp. Parties For Petitioners : Mr. S.K. Pradhan-3, Advocate For Opp. Party No.2 : Mr. A.A. Khan, Advocate ---------------------------- P R E S E N T:
Legal Reasoning
MR. JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing and Judgment: 01.11.2023 --------------------------------------------------------------------------------- S.K. Mishra, J. The Writ Petition has been preferred by the legal heirs of Late Apsara Barad, who was the claimant in MAC Case No.386 of 1999 so also the Petitioner in Execution Case. The Order dated 22.04.2022, vide which their petition under Order-22 Rule-3 of C.P.C. filed in the Execution Case for substitution was rejected by the court below, is under challenge. 2. The case of the Petitioners is that their mother, being the claimant in MAC Case No.386 of 1999, an award was passed in her favour on 30th June, 2005 by the Tribunal for an amount of Rs.3,36,400/- with 6.5% interest. Without complying the said award, the Opposite Party No.2 (Insurance Company) preferred an Appeal before this Court in MACA No.150 of 2007, which was dismissed on 07.04.2012 confirming the impugned award passed by the Tribunal. Thereafter on 23.11.2012, Apsara Barad filed a petition for execution of the award before the Tribunal. On 19.04.2022, learned Counsel for the Parties filed a compromise petition to settle the lis with consolidated amount of Rs.5,75,468/-. A cheque for the said amount, being issued in favour of the claimant Apsara Bared, was deposited before the Tribunal along with the compromise petition and matter was posted to 22.04.2022. When the learned Counsel for the Claimant wanted to contact Apsara Barad to collect the said cheque, he came to know about her death since 15.05.2018. Accordingly, on 22.04.2022 a petition for substitution was filed by the W.P.(C) No.12191 of 2022 Page 2 of 7 present Petitioners being the legal heirs of Apsara Barad along with a petition to direct the Insurance Company to issue fresh cheque in the name of the legal heirs of Apsara Barad (Present Petitioners). The Tribunal vide the impugned order dated 22.04.2022 rejected the said petition as not maintainable so also the petition filed under Order-22, Rule-3 of C.P.C. on the ground that the said provision is not applicable to the instant case. However, liberty was granted to the present Petitioners, being legal heirs of the claimant, to file appropriate application indicating specific provision of law for redressal of their grievances. Hence, this Writ Petition. 3. Admittedly, the mother of the Petitioners was alive when the execution proceeding was initiated and during pendency of the same, she died leaving behind the present Petitioners, who claim themselves to be the legal representatives of late Apsara Barad. The concerned lawyer, without consulting and contacting the claimant/petitioner, filed joint compromise petition in the Execution Case on 19.04.2022 and the matter was posted to 22.04.2022 for disbursement of the cheque to the claimant. When the concerned lawyer tried to contact and inform the claimant to remain present on 22.04.2022 to W.P.(C) No.12191 of 2022 Page 3 of 7 collect the cheque from the executing Court, he came to know about claimant’s death. Immediately on the next date i.e. 22.04.2022, two petitions were filed by the present petitioners, one with a prayer to direct the Insurance Company to issue fresh cheque in the name of the present Petitioners and the other petition for substitution under Order-22, Rule-3 of C.P.C. Though the first petition for directing the Insurance Company to issue fresh cheque in the name of the present petitioners was righty rejected, the same being premature, the Court below also rejected the petition for substitution on technical ground of filing the said petition indicating wrong provision of law. 4. Learned counsel for the petitioner submits, while passing the impugned order, though liberty was granted to the petitioners to file proper application for substitution, but the execution proceeding was dropped vide the said order. Unless the execution proceeding is revived, the petitioners, who are the legal representatives of the deceased executants, will not be able to move proper application for being impleaded as parties to the execution case , in terms of liberty granted by the Court below. W.P.(C) No.12191 of 2022 Page 4 of 7 5. As it seems, though the petitioners have a right to be substituted/impleaded as parties in place of the deceases petitioner in the execution proceeding, the Court below rejected the present petitioners’ petition for substitution because of misquoting of the provisions of law. Law is well settled that non-mentioning of relevant provision of law or mentioning of wrong provision of law in an application/petition cannot be a ground to reject the petition. It is the duty of the Court which dispenses justice, to apply the correct provisions of law so as to deliver the relief to the party, who is entitled to it. 6. In view of the settled position of law, this Court is of the view that the Court below was not justified to reject the petition of the present Petitioners, who are the legal representatives of the Petitioner-Executant on technical ground as to non-maintainability of the said petition under Order-22, Rule-3 of C.P.C. Further, this Court is of the view
Decision
that the impugned order is bad, as despite granting liberty to the Petitioners to move appropriate application, the execution proceeding was dropped vide the impugned order, thereby debarring the present Petitioners to move appropriate W.P.(C) No.12191 of 2022 Page 5 of 7 application in terms of liberty granted vide the impugned order dated 22.04.2022, as at Annexure-2. It being an execution proceeding and the petitioners being the legal representatives of the deceases petitioner succeeding to the estate of the petitioner, the court below ought to have impleaded them as parties to the said execution proceeding in place of the deceases petitioner and proceeded further in accordance with law till its logical end. 7. Hence, the impugned order dated 22.04.2022, as at Annexure-2 is hereby set aside. The Writ Petition is disposed of with a direction to revive the Execution Case and implead the present petitioners as parties to the said execution case, thereby giving opportunity to the Petitioners to pursue said execution case further till its logical end. The Petitioners are to move a formal application with their details within 15 days hence along with the certified copy of this order, enabling the Court below to implead them as parties to the said execution case in place of the deceases petitioner/ executants as directed above. On doing so, the executing court shall deal with and dispose of the execution case in accordance with law W.P.(C) No.12191 of 2022 Page 6 of 7 at the earliest, preferably within a period of two months from the date of filing of the said petition. 8. Urgent certified copy of this judgment be granted on proper application. …….….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack The 1st November, 2023/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 03-Nov-2023 19:25:57 W.P.(C) No.12191 of 2022 Page 7 of 7