Harasamani Mohapatra & Another vs Bijayanarayan Mohapatra &
2023 Latest Caselaw 12866 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                RSA No.331 of 2005
                 Harasamani Mohapatra & Another               Appellant(s)
                                     Mr. B. Das, Adv. on behalf of Mr. N.C.
                                                            Pati, Advocate.

                                           -versus-
                 Bijayanarayan Mohapatra &             ....        Respondent(s)
                 Others
                                                 Mr. D.P. Mohanty, Advocate
                                       (Respondent no.1), Mr. P. Harichandan
                                              on behalf of Mr. S.K. Dash, Adv.
                                            (Respondent Nos.3 to 5 and 7 to 9)


                                     CORAM:
                            MR. JUSTICE A.C. BEHERA

                                           ORDER

Order No.                                 17.10.2023
    13.     1.      This matter is taken up through Hybrid Arrangement (Virtual

            /Physical Mode).

2. Three sets of cross objections under Order 41 Rule 22 of the

CPC have been filed on behalf of the respondent Nos.1,2(a) to 2(g),

10 to 14 and 16 to 17.

3. The learned counsel for the above respondents is present. The

learned counsel for the appellants and the learned counsel for the

respondent Nos.3 to 5 and 7 to 9 are also present.

4. Heard on the point of admission of the above cross objections

from the side of the above respondents (those have filed cross // 2 //

objections) and as well as from the learned counsel for the appellants

and respondent Nos.3 to 5 and 7 to 9.

5. This second appeal has arisen out of the Judgment and decree

from a suit for partition vide O.S No.258 of 1986-I.

6. The respondent No.1 was the sole plaintiff before the learned

trial court in O.S. No.258 of 1986-I. The respondents (those have

filed the cross objections) were the defendants.

7. According to the submission of the learned counsel for the

above respondents (those have filed the cross objections), during the

pendency of the above suit vide O.S No.258 of 1986-I before the trial

court, there was a part compromise between some of the parties by

filing a joint compromise petition which was marked as Ext.10. But

that suit was dismissed by the trial court, for which, Ext.10 was not

taken into consideration.

8. In the first appeal, though the learned first appellate court had

discussed about Ext.10 in the Judgment of the first appeal, but did not

pass any order regarding the allotment of property on the basis of that

Ext.10. Therefore, during the pendency of this second appeal, the

above respondents have preferred the cross objections praying for

consideration of Ext.10 in their favour (which was not considered in

their favour by the trial court and as well as by the first appellate // 3 //

court).

Admit the three cross objections of the respondent Nos.1, 2(a)

to 2(g), 10 to 14 and 16 to 17 by formulating the following

substantial question of law i.e. "Whether non-consideration of the

part compromise petition vide Ext.10 by the learned courts below in

a suit for partition is sustainable under law?"

9. The learned counsel for the appellants submitted that, the

respondent No.5 has expired in the meanwhile. Therefore, the

appellants are directed to take step for substitution of the LRs of the

deceased respondent No.5.

10. List this matter on 15.11.2023.

( A.C. Behera ) Judge Rati Ranjan

Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 19-Oct-2023 10:36:58