Orissa High Court
Asit Kumar Pattanaik & Others vs Purna Chandra Pattanaik on 11 April, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 496 of 2007
I.A. Nos. 938, 939, 940 and 941 of 2022
An appeal under Section 100 Code of Civil Procedure.
---------------
Asit Kumar Pattanaik & Others .... Appellants
-Versus-
Purna Chandra Pattanaik ..... Respondents
and Others
Advocate(s) appeared in this case:-
_______________________________________________________
For Appellants : M/s. S.P. Mishra, Sr. Advocate
S. Mishra, R. Agarwal. G.N. Parida
& B. Behera, Advocates
For Respondents : M/s. P.K. Mohapatra
S. Mohanty, A. Mohapatra
B. Mishra & S.K. Dash, Advocates
(For R.Nos. 1 to 10)
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
11.04.2025
SASHIKANTA MISHRA, J.
All these Interlocutory Applications being
intricately connected were heard together and are
disposed of by this common order.
2. To indicate briefly, I.A. No.938 of 2022 is an
application filed for substitution of deceased respondent
No.9 by her legal heirs. I.A. No. 940 of 2022 is an
application for setting aside the order of abatement of the
appeal. I.A. No. 939 of 2022 is an application seeking
condonation of delay in filing the application for
substitution. I.A. No. 941 of 2022 is an application for
recalling order dated 25.08.2022 passed by this Court
whereby the entire appeal was held as abated for non-
substitution of the deceased-respondent No.9.
3. A brief reference to the relevant facts would be
in order at the outset.
4. The second appeal was filed by the defendants
against a confirming judgment. The suit filed by the
plaintiff-respondent No.1 for partition of the scheduled
property was decreed by the trial court (Civil Judge
(Senior Division), Angul) in Title Suit No. 1 of 2000 vide
judgment passed on 22.02.2006 followed by decree. Said
judgment and decree came to be confirmed in appeal
decided by the learned Addl. District Judge, Angul in RFA
No. 11 of 2006 by judgment dated 24.08.2007. The
second appeal was admitted by order dated 03.02.2012 by
framing four substantial questions of law. During
pendency of the appeal, respondent No.9-Basanti Devi
died on 30.11.2017, no steps having been taken to
substitute her, the counsel for the respondents filed a
memo before this Court on 11.07.2018 informing the
above fact. Pursuant to the filing of such memo, the
appellants filed an application being I.A. No. 543 of 2019
purportedly under Order V Rule 20 of CPC seeking paper
publication of the notice on the legal heirs. This Court, by
order dated 25.08.2022 not only rejected such petition as
not maintainable but also dismissed the appeal by holding
that the impugned judgments are indivisible and there
being abatement of the appeal against respondent No.9,
same cannot proceed against rest of the respondents. On
such background, the present applications have been filed
out of which, I.A. No 941 of 2022, as already stated, has
been filed to recall the order dated 25.08.2022 referred
above.
5. Written objections have been filed on behalf of
the respondents questioning the maintainability of the
petitions and also the correctness of the grounds raised
seeking condonation of delay.
6. Heard Mr. S.P. Mishra, learned Senior Counsel
with Mr.R. Agarwal for the appellants and Mr. P.K.
Mohapatra, learned counsel for the respondents.
7. Mr. Mishra would argue that I.A. No.543 of
2019 was filed by the appellants on wrong legal advice.
Instead of filing application under Order XXII Rule 4 of
CPC, the petition was filed under Order V Rule 20. This is
entirely a mistake of the conducting counsel for which the
party should not suffer as per the settled position of law.
In this context, Mr. Mishra has cited several judgments to
support his contentions. On the question of condonation
of delay Mr. Mishra would argue that IA. No. 543 of 2019,
though filed wrongly, was pending till 25.08.2022, i.e. for
nearly four years. That apart, the appellants though came
to know about the death of the respondent No.9 on
20.03.2019, yet could not ascertain the particulars of her
legal heirs so as to take steps to bring them on record.
Under such circumstances, I.A. No. 543 of 2019 was filed.
Thus, no negligence or willful delay on the part of the
appellants can be attributed. Mr. Mishra closes his
argument by submitting that the appeal has been
admitted and as many as four substantial questions of
law have been framed and as such, if the appeal is heard
on merits, no prejudice would be caused to the other side.
8. Mr. P.K. Mohapatra has vehemently objected to
the contentions raised by Mr. Mishra by submitting that
the very conduct of the appellant disentitles him from any
relief whatsoever, much less the relief claimed in the four
interlocutory applications. Mr. Mohapatra further submits
that the appellant has also resorted to falsehood in his
application for condonation of delay inasmuch as he was
well aware of the fact of death of respondent No.9 on
30.11.2017 being her nephew/niece. The appellant No.2
had also attended the obsequies and sradha ceremony of
the deceased respondent. Therefore, the plea taken that
they were not aware of the death of deceased respondent
No.9 is unacceptable. These petitions have been filed with
the intent to delay the execution of the decree. The
executing court, vide order dated 19.09.2023 has directed
delivery of possession of the shares as per the decree.
9. I have given my anxious consideration to the
averments in the instant applications as also contentions
raised on behalf of the parties.
10. Coming to the question of delay, undisputedly,
respondent No.9 died on 30.11.2017. As already stated,
no steps were taken to substitute the deceased
respondent. Only when a memo was filed by the counsel
for the respondent on 18.10.2019 under Order XXII Rule
10-A that an application was filed being IA. No. 543 of
2019. Said application was filed purportedly under Order
5 Rule 20 of CPC, which this Court, by order dated
25.08.2022, refused to entertain. Pendency of an
application, which is inherently not maintainable in law
cannot enure to the benefit of the applicant. It is stated
that said application was filed on wrong legal advice by
the conducting counsel and that the party should not
suffer for the mistake committed by the lawyer. There is
no quarrel with above proposition but then having filed a
second appeal and participated in hearing on the question
of admission resulting in admission of the appeal on
substantial questions of law, it is scarcely believable that
the conducting counsel at the relevant time was so
ignorant of law as to file an application under Order V
Rule 20 instead of Order XXII Rule 4. This Court is unable
to accept the above plea. Even otherwise, it has been
contended that though the appellant became aware of the
death of respondent No.9 only on filing of a memo by the
respondents, whereabouts of her legal heirs could not be
ascertained. This is again hardly believable inasmuch it
has not been disputed that the appellants and respondent
No.9 are closely related being aunt and nephew/niece. In
fact, the suit itself was filed for partition of the ancestral
joint family properties. It is therefore, difficult to believe
that despite knowing who the legal heirs are, the
appellants would not be aware of their whereabouts so as
to file a proper application for substitution for as long as
four years.
11. In the objection filed by the respondents it has
been stated that the appellant had attended the obsequies
and sradha of the deceased-respondent. This has not been
specifically denied. Thus, from the foregoing discussion, it
is evident that the appellants are guilty of gross delay and
laches in prosecuting the appeal filed by them. The
grounds urged are not convincing enough to pursuade
this Court to accept the same.
12. In the result, this Court finds no merit in the
application for condonation of delay (I.A. No. 939 of 2022)
for which the same is dismissed. Consequently, I.A. No.
938 and 940 of 2022 are also dismissed. I.A. No. 941 of
2022, being also devoid of merit, is dismissed.
...............................
Sashikanta Mishra,
Judge
B.C. Tudu
Signed by: BHIGAL CHANDRA TUDU
Location: Orissa High Court, Cuttack
Date: 14-Apr-2025 15:42:58
