Orissa High Court
A. Venkat Ramanama & Others vs Vonteddu Nagayya & Others on 8 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.68 of 2006
A. Venkat Ramanama & Others .... Appellants
Mr.B. Mishra, Advocate
-versus-
Vonteddu Nagayya & Others .... Respondents
Mr. D.R. Bhokta, Advocate (R.3 & 4)
Mr. S. K. Das, Advocate (R.2 & 5)
CORAM:
MR. JUSTICE D.DASH
ORDER
08.12.2022
Order No. I.A. Nos.1062,1063 & 1064 of 2022
10. 1. This matter is taken up through hybrid arrangement
(virtual/physical mode).
2. The Appellants, by filing these applications have prayed
for substitution of the legal representatives of Respondent No.1
(Plaintiff No.1) by setting aside the abatement and condoning the
delay.
3. Heard.
4. Keeping in view the submissions made and on going
through the averments taken in the applications; it is seen that the
Respondent No.1 (Plaintiff No.1) has died on 13.05.2012 leaving
behind his widow as his legal representative. It is stated that only
when these Appellants (Defendants) received notice in Execution
Proceeding No.1 of 2003, from the execution petition, they came
to know the factum of death of Respondent No.1 (Plaintiff No.1)
and thereafter, ascertaining the name of the legal representative of
the Respondent No.1 (Plaintiff No.1), steps have been taken. It is
further stated that the notice was received in that Execution
Proceeding in the month of August, 2022 (no date is indicated).
// 2 //
5. A careful reading being given to the averments taken in the
Applications; it reveals that the Appellants thereunder want to
convey as if it was the duty of the Respondents (Plaintiffs) or the
legal representative of the deceased Respondent No.1 (Plaintiff
No.1) to inform the Appellants (Defendants) regarding the death of
Respondent No.1 (Plaintiff No.1) so as to enable the Appellants
(Defendants) to take steps in that regard in this Appeal for
pursuing the same.
Record shows that Execution Proceeding being pursued by
the Respondents (Decree Holders-Plaintiffs); in Misc. Case
No.1676 of 2006 on the prayer of these Appellants (Defendants),
this Court had been pleased to stay its further proceeding. Here the
death of the Respondent No.1 having taken place on 13.05.2012;
these applications have been filed on 18.10.2022 which is more
than ten years after abatement of this Appeal as against the
Respondent No.1 (Plaintiff No.1). The averments do not reveal as
to what were the sufficient causes which prevented these
Appellants (Defendants) from taking step for substitution in time.
The sufficient cause for them is that they had no knowledge till
they received the notice in the Execution Proceeding which per se
is not believable as also legally acceptable as the Appellants
(Defendants) are under legal obligation to take step in time and
date of knowledge is not the starting period of limitation. In the
given case, the delay is for more than ten years and a valuable right
has accrued in favour of the legal representative of the Respondent
No.1 as the decree in her hand is final and executable at her
instance. The inaction of the Appellants (Defendants) being found
to be without any acceptable explanation, this Court is not in a
position to say that the Appellants (Defendants) had been
prevented by sufficient cause for all these ten years.
// 3 //
6. In view of all these above, this Court is not inclined to
accept the prayers advanced in the Applications to allow
substitution of the Respondent No.1 by setting aside abatement and
condoning such long period of delay.
7. The Applications are accordingly dismissed.
(D. Dash)
Judge
ORDER
08.12.2022
Order No. R.S.A. No.68 of 2006
11. 1. In view of above order in I.A. Nos.1062, 1063 & 1064 of
2022, this Appeal has abated as against the Respondent No.1
(Plaintiff No.1) w.e.f. 13.05.2012.
2. The Respondents as the Plaintiffs had filed the suit and
they having obtained the decree, the First Appeal filed by these
Appellants (Defendants) has been dismissed. The Appellants
(Defendants) were directed to vacate the suit house and give
vacant possession of the same to the Respondents (Plaintiffs). In
view of the abatement of this Appeal as against the Respondent
No.1 (Plaintiff No.1), the judgments and decrees have attained the
finality in so far as the legal representative of Respondent No.1
(Plaintiff No.1) is concerned is very well executable at her instance
and the decree is indivisible.
3. For the aforesaid, for the abatement of the Appeal as
against Respondent No.1 (Plaintiff No.1), this appeal abates in
entirety as it cannot proceed as against the remaining Respondents
(Plaintiffs) for the very nature of the decree.
(D. Dash)
Judge
H
