The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Jan-2024 14:34:09 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.883 OF 2023 Bella Sahoo …. Petitioner Mr. Lakshman Mishra, Advocate -versus- Kulamani Sahoo and others …. Opp. Parties Order No. 04. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 19.01.2024 This matter is taken up through hybrid mode. Order dated 27th February, 2023 (Annexure-4) passed by learned Senior Civil Judge, Jajpur Road in TS No.47 of 1994 (FD) is under challenge in this CMP whereby learned Trial Court proceeded with the final decree proceeding in spite of order dated 14th December, 2021 passed by the said Court keeping the final decree proceeding in abeyance awaiting alteration and modification of the preliminary decree in the aforesaid suit. 3. Mr. Mishra, learned counsel for the Petitioner submits that the Petitioners are the LRs of Jagabandhu Sahoo. They were impleaded as party to the final decree proceeding vide order dated 23rd July, 2018 passed by learned trial Court. It is his submission that CS No.47 of 1994 was filed for partition. The suit was decreed ex-parte vide judgment dated 26th April, 1997 and the decree dated 2nd May, 1997 holding that the Plaintiff is entitled to 2/3rd share and the Defendants are entitled to 1/3rd share in the suit property. Thereafter, the final decree proceeding was initiated in the year 2000. During pendency of the final decree proceeding, the Plaintiffs filed an application for amendment of the final decree petition Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Jan-2024 14:34:09 // 2 // stating that in the meantime, twenty years have already elapsed and LRs of some of the parties to the preliminary decree were not made parties. The petition was taken up on 23rd July, 2018 along with a petition filed by Defendant No.1b(ii), 1g(ii), 4 and 5 (a) with a prayer to set aside the judgment passed in TS No.47 of 1994 and the preliminary decree drawn thereto. They also prayed to dismiss the final decree proceeding. Considering both the applications, learned trial Court vide his order dated 23rd July, 2018, dismissed the application filed by the above named Defendants to set aside the judgment passed in TS No.47 of 1994 along with other relief. However, application filed for amendment of the final decree petition was allowed. By virtue of the said amendment, the Petitioners were made parties to the final decree proceeding. It is submitted by Mr. Mishra, learned counsel for the Petitioner that since vide order dated 14th December, 2021, learned trial Court kept the final decree proceeding in abeyance till the preliminary decree is modified or altered, it could not have proceeded with the final decree before a subsequent preliminary decree is passed. 4. However, ignoring the same, learned trial Court vide order under Annexure-4 dismissing the application dated 2nd February, 2022 filed by Defendant No.1 Series, 4 Series and 24 with a prayer to treat written statement filed by original Defendant Nos. 1 and 4 filed on 9th December, 1994 in the original suit as their written statement, directed to proceed with the final decree proceeding. 5. It is submitted by learned counsel for the Petitioner that until a subsequent preliminary decree is drawn up by modifying/altering the preliminary decree drawn on 2nd May, 1997, learned trial Court could not have proceeded with the final decree Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Jan-2024 14:34:09 // 3 // proceeding. He, therefore, prays for setting aside the order under Annexure-4 and to direct learned trial Court to proceed with the mater by giving opportunity of hearing to the parties concerned. 6. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that Jagabandhu Sahoo, Sukadev Sahu and Bhikari Sahoo have purchased the suit property vide RSD No.814 dated 29th February, 1952. After execution of the sale deed, delivery of possession was given to them. Thus, all the purchasers have 1/3rd share each in the suit property, although it is not reflected in the MS ROR. In the meantime, Sukadev Sahoo and Bhikari Sahoo have sold their 2/3 share interest measuring Ac.0.11 dec., 0.5 links to Suki Sahoo. In the meantime, Jagabandhu Sahoo died leaving behind his three daughters, namely, Ulli Dei, Dulli Dei and Gelhi Dei. Gelhi Dei died leaving behind her sons namely Baidhar, Bamana and Sudarsan and two daughters, namely, Bela Sahoo, Sanju Sahoo as her LRs. The Petitioner is one of the LRs of Gelhi Dei. 7. On perusal of the case record, it appears that Ulli Dei, Dulli Dei have been impleaded as parties to the suit as Defendant Nos. 1 and 5 respectively. However, Gelhi Dei or her LRs were not made parties to the suit. All that can be inferred from the materials available on record that Ulli Dei, Dulli Dei and Gelhi Dei can claim share through Jagabandhu Sahoo who was one of the purchasers of the suit property in the year 1952. Thus, the branch of Jagabandhu Sahoo was substantially represented during adjudicating of the suit. However, the Defendants were set ex-parte in the suit and the preliminary decree was passed ex-parte. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Jan-2024 14:34:09 // 4 // 8. In the facts and circumstances state above, Gelhi Dei or her LRs cannot claim to draw any fresh preliminary decree as they claim their share in the suit property through Jagabandhu Sahoo. Since Ulli Dei and Dulli Dei have already been made parties and succeeded to the share of Jagabandhu Sahoo, the LRs of Gelhi Dei including the Petitioner cannot claim any independent right over the suit property. The Petitioner has other remedy available to assert her right, if any, over the suit property. 9. Since learned trial Court considering the materials available on record held that no fresh preliminary decree is required to be drawn, it has committed no error in directing to proceed with the final decree proceeding. 10. Hence, I find no infirmity in the order dated 27th February, 2023. 11. Accordingly, the CMP, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4