Praneep Kumar Pradhan & Others vs Suresh Chandra Pradhan & Others
2021 Latest Caselaw 9389 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                               RSA No.215 of 2019


            Praneep Kumar Pradhan & Others ....             Appellants
                                       Mr. Niranjan Singh, Advocate

                                   -versus-
            Suresh Chandra Pradhan & Others ....           Respondents
                                          Mr. Pitambar Jena, Advocate


                      CORAM:
                      MR. JUSTICE D.DASH
                                        ORDER

08.09.2021 Order No.

08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).

2. This Appeal has been filed by the legal representatives of the sole Appellant before the First Appellate Court who was the Defendant No. 7 in the Suit before the Trial Court .

The First Appeal i.e. RFA No. 2 of 2004 before the court of learned District Judge, Deogarh had been filed challenging the judgment and preliminary decree passed by the learned Civil Judge (Senior Divison), Deogarh in Title Suit No. 19 of 1996. Leave to the legal representatives of that sole Appellant (Defendant No. 7) having been granted by this Court vide order dated 18.09.2019 and they are the Appellants in this Second Appeal which is not on the Board.

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3. Learned counsel for the Appellants at the outset submits that the predecessor-in-interest of the present Appellants being aggrieved by the judgment and preliminary decree in T.S. No. 19 of 1996 had filed the First Appeal i.e. RFA No. 02 of 2004 on 12.01.2004 and that during pendency of said Appeal, he died on 15.09.2013. He submits that the sole Appellant (Defendant No. 7) at the time of death was the Govt. Pleader, Deogarh. It is stated that when the record reveals that the Appeal has been finally argued on 16.01.2018 and disposed of by the judgment dated 17.01.2018, the sole Appellant was dead over about four years by then. He therefore contends that First Appellate Court could not have decided the Appeal on merit and the Appeal in case of absence of the legal representatives of the sole Appellant therein coming forward for their substitution so as to further pursue the Appeal, could only have been dismissed as having Abated by operation of law. In support of the factum of death of the sole Appellant, learned counsel places reliance the copy of the death certificate on record which reveals that Hrudayanath Pradhan, the sole Appellant of the First Appeal and the Defendant No. 7 in the Suit died on 15.9.2013 and that has been registered with the Registrar, Birth & Death-cum- Medical Officer, Tileibani PHC in the District of Deogarh on 23.09.2013. In the above state of affairs, when the sole Appellant was dead and admittedly, his legal representatives had not come on record; he raises grave concern as to the

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manner of hearing of the First Appeal and its disposal as has been so made.

In the peculiar factual settings, he, at this stage, submits that these Appellants who are the legal representatives of sole Appellant before the First appellate Court would be moving the First Appellate Court for recall of the judgment and preliminary decree and further pray for its hearing afresh and disposal in accordance with law in their presence on being so substituted in place of the sole Appellant therein. He thus instead of pressing this Second Appeal for hearing on admission prays for its disposal granting the leave for the onward move as above by the present Appellants before the First Appellate Court.

4. Learned counsel for the Respondents submits that the First Appeal having been heard and disposed of in accordance with law; now there remains no scope to question its manner of hearing and disposal.

5. Keeping in view the submissions made, while disposing this Second Appeal as not pressed; this Court grants the liberty to the present Appellants to move the First Appellate Court for recall of the judgment and preliminary decree passed in Title Appeal No. 2 of 2004 on the grounds as contended above. It is further observed that in the event such applications are filed within three weeks hence, the First Appellate Court would do well to issue notice to the Respondents and embarking upon necessary enquiry and hearing the parties as per law would pass

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appropriate order as so permissible in law in further proceeding with the matter in accordance with law.

Issue urgent certified copy as per rules.

(D.Dash) Judge Aksethy