The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:11:13 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.942 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Laxmi Narayan Swain Mohapatra …. Petitioner -versus- Priyalata Swain Mohapatra and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
: Mr. A.K. Mohapatra, Advocate For Opposite Parties : Mr. S. Pattanaik, Advocate For O.P. Nos.1 to 4 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 10th December 2025 B.P. Routray, J. 1. Heard Mr. A.K. Mohapatra, learned Advocate for the Petitioner and Mr. S. Pattanaik, learned Advocate for Opposite Parties 1 to 4. 2. Present C.M.P. is directed against the order dated 23.02.2024 passed by learned Senior Civil Judge, Puri in O.S. No.245 of 1972 in course of the final decree proceeding. In the impugned order, the C.M.P. No.942 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:11:13 question relating to valid legal representative of the deceased-Plaintiff was decided against the present Petitioner. 3. Initially, the suit was filed by one Apana Bewa as the Plaintiff against Ramakrishna Swain Mohapatra (Defendant No.1) and Nisamani Dei (Defendant No.2). The suit was preliminarily decreed on 12th August 1975 for partition. The final decree proceeding was initiated in the year 2015 where a dispute arose with regard to representative of Aparna Bewa through the present Petitioner, namely, Laxmi Narayan Swain Mohapatra as his adopted son. For such dispute, the learned trial court took up enquiry in terms of Order 22 Rule 5, C.P.C. and came to the finding vide impugned order dated 23.02.2024 that the Petitioner is not the adopted son of Apana Bewa and accordingly reallotted the share in favour of other parties. This is challenged by the Petitioner in the present C.M.P. 4. It is submitted on behalf of the Petitioner that despite the registered adoption deed under Ext.1 and the “Dutta Homa” conducted with respect to his adoption, learned trial court by arriving with the finding that since the present Petitioner has not severed the ties with his natural family as an effect of adoption in terms of Section 12 of the Hindu Adoption and Maintenance Act, 1956, his contention towards C.M.P. No.942 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:11:13 adoption to Apana Bewa is not established. By saying so, the learned trial court has ignored all such materials in support of the Petitioner without giving any definite finding with regard to the validity of the adoption. 5. Conversely, it is submitted by Mr. S. Pattanaik, learned counsel for the Opposite Parties 1 to 4 that from the discussions made in the impugned order, the story advanced by the Petitioner to be the adopted son of Apana Bewa has been denied and thus, the learned trial court has directly concluded with the finding that the Petitioner is not the adopted son of Apana Bewa and re-alloted the shares in favour of other parties. 6. Having perused the impugned order dated 23.02.2024 of the learned trial court, it is seen that the order starts with the phrase “This order arises out of an enquiry under Order-22, Rule-5 of C.P.C.” and the order ends with directions re-allotting the shares of the suit property in favour of other parties upon death of Apana Bewa. Going through the body of the impugned order, no definite finding is seen supported by such reasons with regard to validity of adoption of the Petitioner. C.M.P. No.942 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:11:13 7. Admittedly, the Petitioner examined four witnesses on his behalf and adduced two documents. Similarly, the Opposite Parties have also examined one witness and adduced 43 documents against the contention of the Petitioner. Learned trial court though has discussed the evidences of such witnesses and took note of the documents, but did not arrive at any finding in the body of the order with regard to the validity of adoption either in favour of the Petitioner or against him. As seen from the internal page-16 of the order, the learned trial court has concluded as follows:- “From these discussions, it is found that though the petitioner claims that he was adopted by Apana Bewa, he never severed his relationship with the family in which he took birth. Accordingly, it is found that he is not adopted son of Apana Bewa and as such is not legal representative as per Order-22, Rule-5 CPC.” 8. Thereafter, learned trial court proceeded to describe the genealogy of the family of the common ancestor ‘Fakir’ and then straight came to re-allot the share. 9. It is to be reminded here that at the beginning of the impugned order, it is mentioned that this order is with regard to enquiry under Order 22 Rule 5 of the C.P.C., but in the concluding part of the order, C.M.P. No.942 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:11:13 learned trial court has proceeded to the extreme to re-allot the share as if disposing the final decree proceeding by modifying the preliminary decree. Therefore, the approach of the learned trial court is not found in proper sequence to derive such conclusion. On examination of the body of the order, it is further seen that the same is lacking definite findings with reasoning upon discussion of the evidences and materials brought from both sides as to the claim and objection of the parties with regard to sustenance of the claim of adoption in favour of the Petitioner. It needs to be mentioned here that, generally the proceeding under Order 22 Rule 5 C.P.C. is summary in nature where the court has to come to a finding in order to determine of question of legal representative of the deceased-party to the suit. In Satyanand v. Shyam Lal Chauhan, (2018) 18 SCC 485, it is stated that, “.. .. .. It may not be out of context to note that the determination under Order 22 Rule 5 CPC is summary in nature and for limited purpose. Order passed on the impleadment applications, determining a particular person as legal representative has no effect of final decision or operates as res judicata between the legal representatives as to the question of who should ascend as guru.” C.M.P. No.942 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:11:13 In the case at hand while determining so or proceeding under Order 22 Rule 5 C.P.C., the court need not come to the extent to alter the preliminary decree. Particularly in absence of supporting reasons to the finding regarding validity of adoption claimed by the Petitioner, it is felt appropriate to remand the matter back to the learned trial court for fresh decision. Here it needs to be mentioned that, the reason that Petitioner has not severed the ties with his natural family in terms of Section 12 cannot be the sole determinative factor to reject the claim of adoption. The learned trial court should have considered all such materials and evidences with regard to the claim of valid adoption in order to give findings with proper reasoning supporting to the finding to arrive at the conclusion. 10. In the result, the impugned order is set aside and the matter is remitted back to the learned trial court for decision afresh under Order 22 Rule 5, C.P.C. to decide the claim of the Petitioner accordingly, without being influenced by any such observation made by this Court in the present order.
Decision
11. The C.M.P. is disposed of. B.K. Barik/Secretary (B.P. Routray) Judge C.M.P. No.942 of 2025 Page 6 of 6