Orissa High Court
Bikram Parida And Another vs Antaryami Sahu And Others on 28 June, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.91 of 1997
Bikram Parida and another .... Appellant(s)
Represented by
Mr.R.K.Agarwal,Advocate
On behalf of
Mr.S.P.Mishra,Sr.Advocate
-versus-
Antaryami Sahu and others .... Respondent(s)
None
CORAM:
JUSTICE ANANDA CHANDRA BEHERA
ORDER
Order No. 28.06.2024
12. 1. This matter is taken up through hybrid arrangement
(virtual/physical) mode.
2. As per Order No.11 dated 22.04.2024, this 2nd appeal was
admitted and a direction was given to the appellants for filing of
requisites for issuance of appeal notices to the respondents.
3. Accordingly, the appeal notices were issued to the
respondents and the notice of the respondent No.1 has been returned
being undelivered with an endorsement as expired.
On perusal of the record, it appears that, this 2nd appeal was
preferred by the appellants in delay of 822 days, for which, the
appellants had filed a petition under Section 5 of the Limitation Act
vide I.A. No.137 of 1997 along with a petition for stay vide Misc.
Case No.151 of 1997 praying for staying the further proceedings of
the operation of the impugned judgment and decree. But, during the
pendency of Misc. Case Nos.137 of 1997 and 151 of 1997, the
respondent Nos.2 & 3 expired, for which, a direction was given to
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the appellants for substitution of the LRs of the deceased respondent
Nos.2 & 3. When, the appellants did not take any step to substitute
the LRs of the respondent Nos.2 & 3, then, as per Order No.10 dated
25.02.2004, the appeal was dismissed against the PLRs Nos.2(b),
2(c), 3(a), 3(b), 2(a), 3(d), 2(d) to 2(f) of deceased respondent Nos.2
& 3.
4. Thereafter, inadvertently before condonation of delay and
before substitution of the LRs of the respondent Nos.2 & 3, this 2nd
appeal was admitted vide Order No.11 dated 22.04.2024, which
should not have been done without condoning the delay.
5. Therefore, there are inherent defects in the record due to the
passing of the Order No.11 dated 22.04.2024 for admission of the
2nd appeal without condonation of delay and without substitution of
LRs of the deceased respondents.
6. It is the settled propositions of law that, it is the duty of the
Court to correct the defects in the record suo motu when the same is
brought to notice of the Court. Such correction of the record by the
Court is not a heroism, but the same is a judicial conscience in order
to prevent the abuse of process of the Court. In order to keep the
Courts record as correct, the Court has inherent power to recall its
own orders and correct is own mistakes in the record
7. As inadvertently an order for admission of the 2nd appeal has
been passed on dated 22.04.2024 without condoning the delay in
preferring the 2nd appeal vide Misc. Case No.137 of 1997 filed by
the appellants and without taking any steps for substitution of the
LRs of the deceased respondents, then at this juncture, by exercising
powers under Section 151 of the CPC, 1908, the inherently defective
order passed on dated 22.04.2024 is required to be recalled in order
to keep the Court's record as correct.
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8. Hence, the Order No.11 dated 22.04.2024 is recalled.
9. Due to the recalling of the Order No.11 dated 22.04.2024,
the matter be relegated to the position as it was prior to 22.04.2024.
10. When it has been brought to the notice of the Court that, all
the three respondents have expired, then, the learned counsel for the
appellants is directed to substitute the LRs of the respondent Nos.1,
2 & 3.
11. It is made clear that, only after completion of the process of
the substitution of LRs of the respondent Nos.1 to 3, the steps for
condonation of delay under Section 5 of the Indian Limitation Act,
shall be taken by the appellants.
12. List this matter on 15.07.2024.
(A.C. Behera)
Judge
Utkalika
Designation: Junior Stenographer
Location: High Court of Orissa, Cuttack
Date: 01-Jul-2024 15:17:07
