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. 96 of 2015
I.A. Nos. 1160/2022, 1161/2022,1162/2022,
339/2023 and 1181/2023
An appeal under Section 100 Code of Civil Procedure.
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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 are intricately
connected with each other and being heard together are
disposed of by this common order.
2. To indicate briefly, I.A. No.1162 of 2022 is an
application filed for substitution of deceased Respondent
No.9 by her legal heirs. I.A. No. 1160 of 2022 is an
application for setting aside the order of abatement of the
appeal as against Respondent No.9. I.A. No. 1161 of 2022
is an application seeking condonation of delay in filing the
application for substitution. I.A. No. -339 of 2023 and
1181 of 2023 are applications seeking extension of order
of stay of further proceedings of the Execution Case.
3. A brief reference to the relevant facts would be in
order at the outset.
4. The suit filed by the plaintiff-respondent No.1 for
partition of the scheduled property was preliminarily
decreed by the trial court [Civil Judge (Senior Division),
Angul] in Title Suit No. 1 of 2000 vide judgment passed on
22.02.2006. 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, against which the defendant-respondents
have preferred RSA No.496 of 2007 before this court. In
the absence of any order of stay, the trial court drew up
Final Decree on 14.12.2010, against which, the
defendant-respondents filed RFA No.-2 of 2011 before the
learned Addl. District Judge, Angul. Said appeal being
dismissed vide judgment dtd. 20.01.2015, the instant
second appeal (RSA No. 96 of 2015) has been filed. During
pendency of the appeal respondent No.9-Basanti Devi died
on 30.11.2017 which was not supposedly within the
knowledge of the appellants. The appeal being listed on
26.09.2019, when lawyers were abstaining from court
work, on call, by the High Court Bar Association, came to
be abated as against Respondent no.9 which was also not
within the knowledge of the appellants. On being so
aware, the appellant filed a memo in this Court on
11.07.2018 informing the above fact. The appellants filed
an application being I.A. No. 705 of 2019 purportedly
under Order V Rule 20 of CPC seeking paper publication
of the notice on the legal heirs, which was later dismissed
as not pressed but as the legal heirs of the deceased
Respondent No. 9 appeared in the connected Execution
Case relating to the preliminary decree, the appellants
took steps for substitution by filing these I.A.s.
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. 705 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. 705 of 2019,
though filed wrongly, was never listed for hearing and the
appellants were unaware of the order of abatement passed
on 26.09.2019. 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. 705 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 a substantial question of law has 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 than 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. An application was filed being IA. No. 705 of
2019. Said application was filed purportedly under Order
V Rule 20 of CPC, dismissed as not pressed as per order
dtd. 18.09.2023. It is needless to mention that 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 a substantial question 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 much later, 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 in filing the
application for substitution (I.A. No. 1161 of 2022), and
the same is accordingly dismissed. Consequently, I.A. Nos.
1162 and 1160 of 2022 are also dismissed.
13. This Court, by order dated 25.08.2022 passed in
the second appeal (RSA No.496 of 2007) arising out of the
preliminary decree, has already held that the decree being
indivisible and there being abatement of the same as
against Respondent No.9, the appeal cannot proceed
further against the rest of the respondents for which the
said appeal , as a whole was held to have abated . On the
same analogy, the final Decree being also indivisible and
the present appeal having abated as against Respondent
No.9, cannot continue in respect of the other respondents.
The present appeal is thus, held to have abated in its
entirety. As a consequence, I.A. Nos. 339 of 2023 and
1181 of 2023, are also dismissed.
...............................
Sashikanta Mishra,
Judge
B.C. Tudu
Signed by: BHIGAL CHANDRA TUDU
Location: Orissa High Court, Cuttack
Date: 14-Apr-2025 15:42:57
