IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.331 of 2005
Harasamani Mohapatra & Another Appellant(s)
Mr. B. Das, Adv. on behalf of Mr. N.C.
Pati, Advocate.
-versus-
Bijayanarayan Mohapatra & .... Respondent(s)
Others
Mr. D.P. Mohanty, Advocate
(Respondent no.1), Mr. P. Harichandan
on behalf of Mr. S.K. Dash, Adv.
(Respondent Nos.3 to 5 and 7 to 9)
CORAM:
MR. JUSTICE A.C. BEHERA
ORDER
Order No. 17.10.2023
13. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Three sets of cross objections under Order 41 Rule 22 of the CPC have been filed on behalf of the respondent Nos.1,2(a) to 2(g), 10 to 14 and 16 to 17.
3. The learned counsel for the above respondents is present. The learned counsel for the appellants and the learned counsel for the respondent Nos.3 to 5 and 7 to 9 are also present.
4. Heard on the point of admission of the above cross objections from the side of the above respondents (those have filed cross // 2 // objections) and as well as from the learned counsel for the appellants and respondent Nos.3 to 5 and 7 to 9.
5. This second appeal has arisen out of the Judgment and decree from a suit for partition vide O.S No.258 of 1986-I.
6. The respondent No.1 was the sole plaintiff before the learned trial court in O.S. No.258 of 1986-I. The respondents (those have filed the cross objections) were the defendants.
7. According to the submission of the learned counsel for the above respondents (those have filed the cross objections), during the pendency of the above suit vide O.S No.258 of 1986-I before the trial court, there was a part compromise between some of the parties by filing a joint compromise petition which was marked as Ext.10. But that suit was dismissed by the trial court, for which, Ext.10 was not taken into consideration.
8. In the first appeal, though the learned first appellate court had discussed about Ext.10 in the Judgment of the first appeal, but did not pass any order regarding the allotment of property on the basis of that Ext.10. Therefore, during the pendency of this second appeal, the above respondents have preferred the cross objections praying for consideration of Ext.10 in their favour (which was not considered in their favour by the trial court and as well as by the first appellate // 3 // court).
Admit the three cross objections of the respondent Nos.1, 2(a) to 2(g), 10 to 14 and 16 to 17 by formulating the following substantial question of law i.e. "Whether non-consideration of the part compromise petition vide Ext.10 by the learned courts below in a suit for partition is sustainable under law?"
9. The learned counsel for the appellants submitted that, the respondent No.5 has expired in the meanwhile. Therefore, the appellants are directed to take step for substitution of the LRs of the deceased respondent No.5.
10. List this matter on 15.11.2023.
( A.C. Behera ) Judge Rati Ranjan Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 19-Oct-2023 10:36:58