Bhupal Chandra Dhall vs Upendra Kumar Dhall And Others
2021 Latest Caselaw 8241 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                      CMP No.286 OF 2021
                 Bhupal Chandra Dhall                  ....      Petitioner
                                        Mr. M. Balakrishna Rao, Advocate
                                       -versus-
                 Upendra Kumar Dhall and others        .... Opp. Parties

                        CORAM:
                        JUSTICE K.R. MOHAPATRA
                                        ORDER

Order No.                              06.08.2021
 03.        1.       This matter is taken up through hybrid mode.

2. This CMP has been filed assailing the order dated 23rd March, 2018 (Annexure-4) passed by learned Civil judge (Senior Division), Dhenkanal in CMA No.36 of 2016 (arising out of T.S. No.59 of 1975) (F.D.).

3. Mr. Rao, learned counsel for the Petitioner submits that during pendency of T.S. No. 59 of 1975, Mr. Ganeswar Rath, Advocate, Dhenkanal was appointed as receiver and was submitting accounts before the court. After disposal of the suit, the judgment and decree was assailed before this Court in F.A. No.227 of 1978 and F.A. Nos. 237 and 238 of 1993. All the first appeals were disposed of vide judgment dated 19th June, 2014. After disposal of the appeals, the receiver did not submit the accounts for which Respondent No.6, namely, Bhupal Chandra Jena filed Misc. Case No.253 of 2014 in disposed of F.A. No.227 of 1978 for a direction to discharge the receiver and to direct him to submit the accounts. The said misc. case was disposed of on 31st July, 2015 with the following orders:

"In view of the above submission, this Court feels it proper to direct the trial court to intimate the receiver about the

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disposal of the first appeals in which he was appointed as the receiver and to deposit the income which has come to his hand during the period.

It is needless to observe that in case any application for disbursement of the deposits as made by the receiver in the trial court is filed by any of the parties, the trial court would do well to dispose of the same as regard the entitlement keeping in view of the judgment and decree of this Court confirming the judgment and decree passed by the trial court."

Accordingly, the present Petitioner-Bhupal Chandra Dhall filed CMA No.36 of 2016 for release of the amount deposited by the receiver in his favour. The stand of the Petitioner in the said application was that he was the adopted son of Bichhamani Dhall, who was Respondent No.1 in the first appeal. However, without considering the same, learned trial court dismissed the CMA on the ground that the Petitioner had never raised any plea with regard to his adoption either in T.S. No.59 of 1975 and also in FA No.227 of 1978 and F.A. Nos.237 and 238 of 1993. On the other hand, one Bhupal Kumar Jena being described as son of Kalandi Jena was a party to the suit. The question of adoption of the present Petitioner was never the issue either before the trial court or before the appellate court. On the aforesaid findings, learned trial court dismissed the CMA for which this CMP has been filed.

4. Mr. Rao, learned counsel for the Petitioner submits that he has documents and materials to show that the Petitioner is the adopted son of Bichhamani. Learned trial court without affording any opportunity to place those materials rejected the petition. Hence, the impugned order is liable to be dismissed.

5. Heard Mr. Rao, learned counsel for the Petitioner and perused the materials available on record. It is apparent that one Bhupal Chandra Jena, son of Kalandi Jena, was defendant-

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respondent No.6 before the trial court as well as appellate court. No person in the name of Bhupal Chandra Dhall (Petitioner), son of Bichhamani was party to either the suit or appeal. During pendency of the first appeals Bichhamani, who was Respondent No.1 therein died and was substituted. But, the Petitioner was never impleaded as his legal heir. This Court, while disposing of the Misc. Case No.253 of 2014, has specifically directed that in case any application for disbursement of the deposits as made by the receiver in the trial court is filed by 'any of the parties', the trial court would do well to dispose of the same as regards the entitlement keeping in view the judgment and decree of this Court. On the face of it, the Petitioner was not a party either to the suit or appeal. Thus, in order to be entitled to the money deposited by the receiver, the Petitioner has to establish that Bhupal Chandra Jena and Bhupal Chandra Dhall are one and the same person. It is also to be established that he is the adopted son of Bichhamani Dhal. In absence of such materials, his claim over the money deposited by the receiver is unfounded.

6. Accordingly, I find no infirmity in the impugned order. Hence, this CMP being devoid of any merit stands dismissed.

7. It is open to the Petitioner to work out his remedy in accordance with law.

Urgent certified copy of this order be granted on proper application.

jm                                              (K.R. Mohapatra)
                                                      Judge