Orissa High Court
B.Prakash Rao vs N.Ananta Achary @ Raja on 17 February, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.374 of 2019
B.Prakash Rao ..... Appellants
Represented by Mr. S. N.
Mohapatra, Advocate
-versus-
N.Ananta Achary @ Raja ..... Respondents
Represented by Adv.
Mr. T.Sinha, Advocate
CORAM:
THE HON'BLE MR. JUSTICE SASHIKANTA MISHRA
ORDER
Order No. 17.02.2025
15. 1. This matter is taken up through hybrid mode.
2. Office has pointed out delay of more than 100 days in filing of
the appeal. The delay is sought to be explained by the appellant by
stating that challenging the compromise decree passed in RFA
No. 41 of 2011 (RFA No.52/2004 of GDC), the appellants had
approached this Court in CMP No. 214 of 2016.
3. After hearing learned counsel for both sides, this Court by order
dated 22.11.2019, inter alia, passed the following order.
"xxx xxx For the admitted position that
the RFA has been disposed of in terms of
the compromise, this Court is of the
opinion that no C.M.P. involving such
dispute is entertainable. There is
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availability of statutory remedy of Second
Appeal to the Petitioner. Accordingly, the
C.M.P. is permitted to be withdrawn as
not entertainable, however with liberty to
the Petitioner to file appeal. Petitioners
are also at liberty to take recourse to the
provision at Section 14 of the Limitation
Act for their bonafidely pursuing wrong
remedy.
The C.M.P. stands disposed of with the
above direction.
Certified copy as per rules.
Sd/- B. Rath, J"
Thus, the appellants were not only granted liberty to
file Second Appeal but also to take recourse to the provision
under Section 14 of the Limitation Act.
4. Mr. Mohapatra, learned counsel for the appellant submits on
such basis, that liberty having been granted, the delay as pointed
out by the SR may be condoned.
5. Ms. Sinha, learned counsel appearing for the respondent, while
opposing the prayer for condonation of delay, fairly submits that
this Court had, in fact, granted liberty to the appellants to prefer
Second Appeal as also to take recourse to the provision under
Section 14 of the Limitation Act.
6. Considering the submissions and in view of the liberty granted
by this Court in CMP No.214 of 2016, the delay in filling of the
appeal is hereby condoned.
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7. On consent of both parties, hearing on admission of the
appeal is taken up.
8. Heard Mr. S.N.Mohapatra, learned counsel for the appellants
Perused the impugned judgments.
9. Considering the submissions and the grounds raised the second
appeal is admitted on the following substantial question of law;
"Whether the learned lower appellate
Court is justified to array Md. Ayub and Md.
Mastan, Respondent nos. 3, (i) and 3 (ii) respectively
as legal heirs of the original land lady viz. Plaintiff -
Respondent no. 1 even though no materials
available on record to say that they are the legal
heirs and further the learned lower Appellate, Court
is, justified to reject the Petition filed by the
Appellants under Order 1, Rule 10 C.P.C. more
particularly when the Appellants are Bonafide
purchasers and ought to have treated assignees
under the provisions of Order 22, Rule 10 (1) of
C.P.C. "
10. No notice need be issued to Respondent Nos. 1 and 2 as they
have already entered appearance.
11. Issue notice to the other respondents by Regd. Post with A.D.
returnable within 4 weeks.
12. Requisites be filed within three working days.
13. Call for the LCR.
14. List this matter after Summer vacation.
(Sashikanta Mishra)
Judge
Date: 20-Feb-2025 10:55:11 3|Page
