Goura Chandra Behera And Others vs State Of Odisha And Another
2022 Latest Caselaw 7159 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                              RVWPET No. 293 of 2020

            Goura Chandra Behera and others           ....               Petitioners
                                                           Mr. M. Mohanty, Advocate

                                           -versus-
            State of Odisha and another               ....         Opposite Parties
                                                                 Mr. P.K. Rout, AGA

                      CORAM:
                      JUSTICE A.K.MOHAPATRA
                                   ORDER

07.12.2022 Order No.

04. 1. Heard Mr. M. Mohanty, learned counsel appearing for the

review Petitioner and P.K. Rout, learned Additional Government

Advocate appearing for the State-Opposite Parties.

2. The present review petition has been preferred by the legal

heirs of the plaintiff-appellant in the Second Appeal No.219 of 1990.

3. By filing this review petition under Order 47 Rule 1 of the

C.P.C. read with Section 114 of C.P.C. 1908, the learned counsel for

the Petitioner seeks review of the judgment and decree dated

20.11.2017 passed by a coordinate Bench of this Court in Second

Appeal No.219 of 1990.

4. At the outset, Mr. Mohanty, learned counsel for the

Petitioner submits that the present Petitioners are the legal heirs of

the deceased appellant in Second Appeal No.219 of 1990 which was

disposed of on 20.11.2017. He further submits that the appellant in

the above noted second appeal died on 15.6.1996 i.e. during the

pendency of the second appeal. Since the second appeal was heard

and disposed of without considering the case of the appellant, the

present Petitioners, who are legal heirs of the appellant being

aggrieved by the judgment and decree passed by this Court in the

above noted second appeal have preferred an interlocutory

application seeking leave to be impleaed as appellants in place of

deceased appellant in the second appeal. Therefore, this Court deems

it proper to take I.A. Nos.558 and 559 of 2020 before passing order

on the merit in the review petition.

I.A. No.559 of 2020

5. This is application filed by the Petitioner under Section 5 of

the Limitation Act for condonation of delay in filing the review

petition.

6. It is submitted by the learned counsel for the Petitioners that

since the sole appellant has died on 15.6.1996, the present

Petitioners, who are legal heirs of the deceased appellant in the

above noted second appeal. Further, when the judgment and decree

that was passed by a coordinate Bench of this Court in the above

noted second appeal came to the knowledge of the Petitioners

recently and, therefore, they have approached this Court by filing an

application seeking leave to contest the second appeal filed by the

deceased sole appellant along with this limitation petition to

condone the delay in filing the review petition.

7. It is submitted by Mr. Mohanty, learned counsel for the

Petitioners that after the judgment and decree was passed in the

above noted second appeal, the same was communicated to the

Petitioners by their advocate in the trial court on 18.02.2020.

Thereafter, they came to know about the pendency of the second

appeal filed by their predecessor and that fact regarding disposal of

the same in the absence of such predecessor and while he was

already dead. Accordingly, they have filed this application on

14.9.2020 with a prayer to condone the delay in filing the review

petition, i.e. by counting limitation from the date of their knowledge,

i.e. 18.2.2020.

8. Learned counsel for the State, on the other hand, opposes

this application on the ground that there is huge delay in filing the

review petition. He further submits that on his own submission,

learned counsel for the Petitioners says that the sole deceased

Appellant died on 15.6.1996, but they have approached this Court on

14.09.2020 to implead the Petitioners in place of deceased appellant

in the above noted second appeal.

9. However, considering the fact that filing and pendency of

the above noted second appeal before this Court was not within the

knowledge of the Petitioners and they came to know about the same

only on 18.02.2020 when the same was communicated to them by

the lawyer, it cannot be said that delay in filing the review petition

was intentional and deliberate and there is ample reason to believe

that the pendency of the above noted second appeal was within the

knowledge of the Petitioners, particularly when no material was

produced before this Court to establish the fact that the filing of the

appeal was within the knowledge of the Petitioners.

10. Considering the aforesaid facts, this Court thinks it proper to

condone the delay in filing the review petition seeking leave to

continue the above noted second appeal in place of the deceased

appellant.

11. Accordingly, the I.A. is allowed.

I.A. No.558 of 2020

12. This interlocutory application is filed by the legal heirs of

the deceased sole appellant, namely, Prahallad Behera in the above

noted second appeal.

13. It is submitted by the learned counsel for the Petitioners that

he has annexed the death certificate of the deceased appellant in the

above noted second appeal which reveals the said Prahallad Behera

has died on 15.6.1996 and the death certificate issued by the

Registrar, Births & Deaths & Medical Officer, C.H.C. Baapada is

annexed to this application.

14. However, learned counsel for the Petitioners has not filed the

legal heir certificate of the deceased appellant instead he has given

the family genealogy of the deceased appellant which reveals that

the Petitioners are related to the deceased sole appellant Prahallad

Behera. Therefore, he submits that the Petitioners are sufficient right

in the subject matter to dispute and after the death of the sole

deceased appellant they should have been heard in the matter before

passing the final order in the second appeal thereby dismissing the

appeal in their absence.

15. Learned counsel for the State, on the other hand, raises

objection with regard to the genuineness of the legal heirs who have

come to this Court by filing the review petition. However, the

interest of justice would be best protected and served, if this

interlocutory application is allowed for the limited purpose of giving

liberty to the Petitioners to continue in the review petition which has

been filed challenging the judgment and decree passed in the

aforesaid second appeal. Accordingly, the leave is granted and the

Petitioners are allowed to pursue this review petition

RVWPET No.293 of 2020

16. Heard the learned counsel for the Petitioners as well as the

learned Additional Government Advocate appearing for the State-

Opposite Parties.

17. In view of the leave granted by this Court in I.A. No.558 of

2020, learned counsel for the Petitioners is given liberty press the

review application.

18. It is submitted by the learned counsel for the Petitioner that

the sole Appellant in the above noted second appeal was the plaintiff

in O.S. No.136 of 1985, a suit of declaration, filed before the court

of Munsif, Bhadrak. On perusal of the record, it appears that the suit

was allowed and thereafter the defendant preferred an appeal before

the lower appellant court. Further, it seems that the Title Appeal

No.75/227 of 1986-87 preferred by the defendant was allowed by

the Additional District Judge, Bhadrak. Thereafter, the second

appeal has been preferred by the plaintiff-appellant in the year 1990

while the plaintiff-appellant died on 15.6.1996. Further, it is stated

that the filing of the above noted second appeal at the instance of the

sole appellant was not within the knowledge of his legal heirs, i.e.,

present Petitioners. It is further submitted that in the absence of the

Petitioners, the matter was taken up by this Court and the second

appeal was disposed of by a judgment dated 20.11.2017. He, by

relying upon the decisions reported in 2001 (II) OLR-(SC) 261, AIR

1977 Orissa 137 and Volume-XLII (1976) CLT-1283, submits that a

decree against a dead person is a nullity. Therefore, the Petitioners

are not bound by the aforesaid judgment and decree and,

accordingly, pray before this Court that review petition be

considered in its proper perspective and the Petitioners be given an

opportunity to intervene in the second appeal lawfully by filing

proper substitution petition along with setting aside of abatement as

well as for condonation of delay.

19. Considering such submission and further taking into factual

background as well as proposition of law as has been laid down by

the Supreme Court in the decision reported in 2001 (II) OLR-(SC)

261, this Court, while allowing the review petition, recalled the

judgment dated 20.11.2017 passed in Second Appeal No.219 of

1990. Further it is directed the second appeal be placed before the

assigned Bench. It is open for the Petitioners to file substitution,

setting aside, abatement and condonation petition and in the event

the same are filed within a period of two weeks from today, the same

shall be considered by the assigned Bench in accordance with law.

20. With the aforesaid observation, this review petition is

allowed.

(A.K. Mohapatra) Judge Debasis