Orissa High Court
Golak Bihari Barad & Others vs Surendra Kumar Sarma on 1 November, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.12191 of 2022
Golak Bihari Barad & others ....... Petitioners
-Versus-
Surendra Kumar Sarma
and another ....... Opp. Parties
For Petitioners : Mr. S.K. Pradhan-3,
Advocate
For Opp. Party No.2 : Mr. A.A. Khan,
Advocate
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P R E S E N T:
MR. JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing and Judgment: 01.11.2023
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S.K. Mishra, J. The Writ Petition has been preferred by the legal
heirs of Late Apsara Barad, who was the claimant in MAC
Case No.386 of 1999 so also the Petitioner in Execution Case.
The Order dated 22.04.2022, vide which their petition under
Order-22 Rule-3 of C.P.C. filed in the Execution Case for
substitution was rejected by the court below, is under
challenge.
2. The case of the Petitioners is that their mother, being
the claimant in MAC Case No.386 of 1999, an award was
passed in her favour on 30th June, 2005 by the Tribunal for
an amount of Rs.3,36,400/- with 6.5% interest. Without
complying the said award, the Opposite Party No.2 (Insurance
Company) preferred an Appeal before this Court in MACA
No.150 of 2007, which was dismissed on 07.04.2012
confirming the impugned award passed by the Tribunal.
Thereafter on 23.11.2012, Apsara Barad filed a petition for
execution of the award before the Tribunal. On 19.04.2022,
learned Counsel for the Parties filed a compromise petition to
settle the lis with consolidated amount of Rs.5,75,468/-. A
cheque for the said amount, being issued in favour of the
claimant Apsara Bared, was deposited before the Tribunal
along with the compromise petition and matter was posted to
22.04.2022. When the learned Counsel for the Claimant
wanted to contact Apsara Barad to collect the said cheque, he
came to know about her death since 15.05.2018. Accordingly,
on 22.04.2022 a petition for substitution was filed by the
W.P.(C) No.12191 of 2022 Page 2 of 7
present Petitioners being the legal heirs of Apsara Barad along
with a petition to direct the Insurance Company to issue fresh
cheque in the name of the legal heirs of Apsara Barad
(Present Petitioners). The Tribunal vide the impugned order
dated 22.04.2022 rejected the said petition as not
maintainable so also the petition filed under Order-22, Rule-3
of C.P.C. on the ground that the said provision is not
applicable to the instant case. However, liberty was granted to
the present Petitioners, being legal heirs of the claimant, to
file appropriate application indicating specific provision of law
for redressal of their grievances. Hence, this Writ Petition.
3. Admittedly, the mother of the Petitioners was alive when
the execution proceeding was initiated and during pendency
of the same, she died leaving behind the present Petitioners,
who claim themselves to be the legal representatives of late
Apsara Barad. The concerned lawyer, without consulting and
contacting the claimant/petitioner, filed joint compromise
petition in the Execution Case on 19.04.2022 and the matter
was posted to 22.04.2022 for disbursement of the cheque to
the claimant. When the concerned lawyer tried to contact and
inform the claimant to remain present on 22.04.2022 to
W.P.(C) No.12191 of 2022 Page 3 of 7
collect the cheque from the executing Court, he came to know
about claimant's death. Immediately on the next date i.e.
22.04.2022, two petitions were filed by the present
petitioners, one with a prayer to direct the Insurance
Company to issue fresh cheque in the name of the present
Petitioners and the other petition for substitution under
Order-22, Rule-3 of C.P.C. Though the first petition for
directing the Insurance Company to issue fresh cheque in the
name of the present petitioners was righty rejected, the same
being premature, the Court below also rejected the petition for
substitution on technical ground of filing the said petition
indicating wrong provision of law.
4. Learned counsel for the petitioner submits, while
passing the impugned order, though liberty was granted to
the petitioners to file proper application for substitution, but
the execution proceeding was dropped vide the said order.
Unless the execution proceeding is revived, the petitioners,
who are the legal representatives of the deceased executants,
will not be able to move proper application for being
impleaded as parties to the execution case , in terms of
liberty granted by the Court below.
W.P.(C) No.12191 of 2022 Page 4 of 7
5. As it seems, though the petitioners have a right to be
substituted/impleaded as parties in place of the deceases
petitioner in the execution proceeding, the Court below
rejected the present petitioners' petition for substitution
because of misquoting of the provisions of law. Law is well
settled that non-mentioning of relevant provision of law or
mentioning of wrong provision of law in an
application/petition cannot be a ground to reject the petition.
It is the duty of the Court which dispenses justice, to apply
the correct provisions of law so as to deliver the relief to the
party, who is entitled to it.
6. In view of the settled position of law, this Court is of the
view that the Court below was not justified to reject the
petition of the present Petitioners, who are the legal
representatives of the Petitioner-Executant on technical
ground as to non-maintainability of the said petition under
Order-22, Rule-3 of C.P.C. Further, this Court is of the view
that the impugned order is bad, as despite granting liberty
to the Petitioners to move appropriate application, the
execution proceeding was dropped vide the impugned order,
thereby debarring the present Petitioners to move appropriate
W.P.(C) No.12191 of 2022 Page 5 of 7
application in terms of liberty granted vide the impugned
order dated 22.04.2022, as at Annexure-2. It being an
execution proceeding and the petitioners being the legal
representatives of the deceases petitioner succeeding to the
estate of the petitioner, the court below ought to have
impleaded them as parties to the said execution proceeding in
place of the deceases petitioner and proceeded further in
accordance with law till its logical end.
7. Hence, the impugned order dated 22.04.2022, as at
Annexure-2 is hereby set aside. The Writ Petition is disposed
of with a direction to revive the Execution Case and implead
the present petitioners as parties to the said execution case,
thereby giving opportunity to the Petitioners to pursue said
execution case further till its logical end. The Petitioners are
to move a formal application with their details within 15 days
hence along with the certified copy of this order, enabling the
Court below to implead them as parties to the said execution
case in place of the deceases petitioner/ executants as
directed above. On doing so, the executing court shall deal
with and dispose of the execution case in accordance with law
W.P.(C) No.12191 of 2022 Page 6 of 7
at the earliest, preferably within a period of two months from
the date of filing of the said petition.
8. Urgent certified copy of this judgment be granted on
proper application.
...................................
S.K. MISHRA, J.
Orissa High Court, Cuttack
The 1st November, 2023/Prasant
Signature Not Verified
Digitally Signed
Signed by: PRASANT KUMAR PRADHAN
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 03-Nov-2023 19:25:57
