Shantilata Mahanta & Others vs State Of Odisha
2023 Latest Caselaw 9024 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 SAO No.5 of 2023
        Shantilata Mahanta & Others                ....            Appellants
                                                  Mr. A. Mohanta, Advocate

                                       -Versus-

        State of Odisha                             ....            Respondents
                                                          Mr. P.K. Rout, AGA
                    CORAM:
                    MR. JUSTICE R.K. PATTANAIK

                                      ORDER

Order                               10.08.2023
No.                            I.A. No.26 of 2023
 01.    1.        Heard learned counsel for the appellants.

2. Instant appeal is in terms of Order XLIII Rule 1(u) read with Section 104 CPC and at the instance of the appellants against the impugned judgment and decree dated 31st October, 2022 passed in FA No.32 of 2016.

3. Learned counsel for the appellants referring to a copy of the Medical Certificate submits that petitioner No.1 (appellant No.1) was sick and therefore, he could not take any step immediately after the impugned judgment under Annexure-1 and therefore, delay of 54 days did occasion as a result, which is required to be condoned in the interest of justice.

4. Heard Mr. Rout, learned AGA for the State respondent and his objection is noted down.

5. Considering the delay of 54 days only and in support of illness of petitioner No.1 (appellant No.1), a Medical Certificate as at Annexure-1 series is produced wherein it has been indicated that he was sick during the alleged period which is stated to be ground for

which steps could not be taken against the impugned judgment under Annexure-1 series, the Court is of the view that such delay since duly explained should be condoned instead of entertaining any doubt with regard to the plea of illness advanced.

6. Accordingly, it is ordered.

7. The IA stands allowed. Consequently, delay of 54 days in filing of the appeal is hereby condoned.

(R.K. Pattanaik) Judge

SAO No.5 of 2022

1. In view of the order in IA No.26 of 2023, the appeal is admitted on the delay in condoned under Section 5 of the Limitation Act. Considering the submissions of learned counsel for the respective parties, the following substantial question of law is formulated, such as, whether the learned Lower Appellate Court has committed any error of law by not adhering to the provisions of Order XLI Rule 24 CPC while remanding the matter with a direction for engage a Survey Commissioner and for fresh adjudication of the suit in CS No.112 of 2010?

2. List on 31st August, 2023 for final hearing and orders.

(R.K. Pattanaik) Judge

IA No.27 of 2023

1. Awaiting final disposal of the appeal, this Court as an interim measure stays the further proceeding of the suit in CS No.112

of 2010 pending in the file of learned Civil Judge (S.D.), Keonjhar till the next date.

2. List on the date fixed.

(R.K. Pattanaik) Judge

Tudu

Signature Not Verified Digitally Signed

Reason: Authentication Location: OHC,CTC Date: 11-Aug-2023 19:45:48