Smt. Laxmi Kumari Mallick vs Godabari Sahoo(Deceased) And
2026 Latest Caselaw 2160 Ori

Orissa High Court

Smt. Laxmi Kumari Mallick vs Godabari Sahoo(Deceased) And on 10 March, 2026

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                             R.S.A. No.127 of 2020

                     (In the matter of an appeal under Section 100 of the Code of Civil
                   Procedure, 1908)

                    Smt. Laxmi Kumari Mallick                      ....             Appellant

                                                      -versus-
                    Godabari     Sahoo(deceased)           and ....              Respondents
                    others


                   Appeared in this case:-
                         For Appellant            :              Mr. N.K. Sahu, Sr. Advocate

                         For Respondents          :                Mr. S.K. Nayak, Advocate


                    Appeared in this case:-

                    CORAM:
                    JUSTICE A.C. BEHERA

                                            JUDGMENT

Date of hearing : 11.02.2026 / date of judgment : 10.03.2026

A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.

2. The appellant in this 2nd appeal, i.e., Laxmi Kumari Mallick was

the plaintiff before the learned trial court in the suit vide C.S. No.688 of

2014 and respondent before the learned 1st appellate court in the 1st

appeal vide R.F.A. No.13 of 2017.

3. The husband of the respondent in this 2nd appeal, i.e., Narayan

Chandra Sahoo was the defendant before the learned trial court in the suit

vide C.S. No.688 of 2014.

The respondent Godabari Sahoo being the wife of Narayan

Chandra Sahoo was the appellant before the learned 1st appellate court in

the 1st appeal vide R.F.A. No.13 of 2017.

The suit of the plaintiff(appellant in this 2nd appeal) against the

defendant Narayan Chandra Sahoo vide C.S. No.688 of 2014 was a suit

for specific performance of contract.

4. As per the averments made in the plaint of the plaintiff(appellant

in this 2nd appeal), the suit properties stands recorded in the name of the

private deity, i.e., Laxmi Narayan Thakuar. The defendant(Narayan

Chandra Sahoo) was the marfatdar of the deity Laxmi Narayan Thakur.

In order to construct a new house and station for the deity Laxmi

Narayan Thakur, the defendant decided to sell the properties of the deity,

i.e., suit properties and gave a proposal for sale of the same to the

plaintiff. The plaintiff accepted to the said sale proposal of the defendant

for a consideration amount of Rs.9,50,000/-. As the defendant was in

urgent need of money, for which, the plaintiff gave him Rs.2,00,000/- in

advance on dated 12.08.2013 out of the consideration amount of

Rs.9,50,000/- and to that effect, the defendant executed a registered

agreement to sell in favour of the plaintiff for selling the suit properties

indicating a condition therein that, the defendant shall file a petition

before the Endowment Commissioner for obtaining "No Objection" for

sale and then, he(defendant) shall execute and register the sale deed in

respect of the suit properties in favour of the plaintiff, but, the defendant-

Narayan Chandra Sahoo did not show his willingness for obtaining "No

Objection" for the sale of the suit properties. So, the plaintiff called the

defendant to her house on dated 05.09.2014 for a discussion about the

same, but, it was found that, the defendant is avoiding to perform the part

of his contract. For which, without getting any way, the plaintiff

approached the civil court by filing a suit vide C.S. No.688 of 2014

against the defendant-Narayan Chandra Sahoo praying for directing the

defendant-Narayan Chandra Sahoo to execute and register the sale deed

in favour of the plaintiff in respect of the suit properties after receiving

the rest consideration amount of Rs.7,50,000/- and to deliver the

possession of the suit properties to her(plaintiff) and to restrain the

defendant-Narayan Chandra Sahoo permanently from executing and

registering any sale deed in respect of the suit properties in favour of any

other person along with the other relief, to which, she(plaintiff) is entitled

for.

5. When, the defendant did not turn to participate in the suit, then,

he(defendant, Narayan Chandra Sahoo) was set ex parte and the suit vide

C.S. No.688 of 2014 was heard ex parte. During ex parte hearing of the

suit, she(plaintiff) examined herself as P.W.1 and exhibited series of

document on her behalf as Exts.1 to 8.

6. After conclusion of hearing and on perusal of the materials,

documents and evidence available in the record, the learned trial court

passed ex parte judgment and decree in the suit vide C.S. No.688 of 2014

on dated 01.09.2016 and 06.09.2016 respectively in favour of the

plaintiff and against the defendant subject to payment of cost and

directed to the defendant-Narayan Chandra Sahoo to execute and register

the sale deed in respect of the suit properties in favour of the plaintiff in

accordance with law as per the agreement vide Ext.1 within three months

after receiving the rest consideration amount, i.e., Rs.7.50,000/- and to

pay cost of Rs.40,000/- to the plaintiff before execution of the sale deed

depositing the said cost before the learned trial court.

7. When, during the pendency of the said suit vide C.S. No.688 of

2014, the defendant, i.e., Narayan Chandra Sahoo had expired, for which,

the wife of the defendant, i.e., Godabari Sahoo challenged the aforesaid

ex parte judgment and decree passed by the learned trial court in the suit

vide C.s. No.688 of 2014 preferring 1st appeal vide RFA No.13 of 2017

being the appellant against the plaintiff arraying her(plaintiff) as

respondent.

8. After hearing from the learned counsels of both the sides, the

learned 1st appellate court set aside the ex parte judgment and decree

dated 01.09.2016 and 06.09.2016 respectively passed by the learned trial

court in the suit vide C.S. No.688 of 2014 as per its judgment and decree

dated 14.01.2020 and 22.01.2020 respectively assigning the reasons that,

"the defendant in the suit vide C.S. No.688 of 2014, i.e., Narayan

Chandra Sahoo was set ex parte on dated 16.01.2016 and he(defendant,

Narayan Chanddra Sahoo) expired on dated 30.04.2016, which was

much prior to the hearing of the argument in that suit. The ex parte

judgment and decree in that suit vide C.S. No.688 of 2014 was passed on

dated 01.09.2016 and 06.09.2016 respectively without substituting the

legal heirs of the deceased defendant and without passing any order

exempting the plaintiff from substituting the legal heirs of the defendant.

For which, the ex parte judgment and decree passed in the suit vide C.S.

No.688 of 2014 by the learned trial court was a nullity, because, the

same was passed against the dead defendant.

That apart, the suit properties are the properties of the deity Shri

Laxmi Narayan Thakur, but, the deity was not made a party in the suit,

though, the deity is the perpetual minor and a juristic person. For which,

the deity was the necessary party in the suit vide C.S. No.688 of 2014. So,

in absence of the deity, the suit of the plaintiff was not maintainable.

Because, after the death of Narayan Chandra Sahoo, none was there to

represent the deity in the suit, though as per law, the deity must be

represented by the human being. For which, the ex parte judgment and

decree passed in the suit vide C.S. No.688 of 2014 by the learned trial

court was not legal. Therefore, the learned 1st appellate court set aside

the same and dismissed to the suit vide C.S. No.688 of 2014 of the

plaintiff."

9. On being aggrieved with the aforesaid judgment and decree passed

by the learned 1st appellate court against the plaintiff, the plaintiff

challenged the same preferring this 2nd appeal being the appellant against

the wife of the defendant(who was the appellant in the 1 st appeal vide

R.F.A. No.13 of 2017) arraying her as respondent.

When during the pendency of the 2nd appeal, the respondent(wife

of defendant, Narayan Chandra Sahoo) expired, then her LRs have been

substituted in her place.

10. This 2nd appeal was admitted on formulation of the following

substantial questions of law, i.e.:-

(i) Whether the learned 1st appellate court was right in setting aside the trial court's judgment on the ground

of death of defendant prior to the hearing of the argument in the suit and whether the legal course is to remand back the matter to the learned trial court for taking appropriate steps for substitution and for fresh adjudication?

(ii) Whether the marfatdar has the right to enter into an agreement to sale in respect of the property of a private deity?

11. I have already heard from the learned counsel for the

appellant(plaintiff) and learned counsel for the respondent.

12. When, as per the findings and observations made by the learned

trial court and the learned 1st appellate court in their respective judgments

and decrees on the basis of the materials available in the record, the

aforesaid both the formulated substantial questions of law are inter-linked

having ample nexus with each other, then, both the aforesaid formulated

substantial questions are taken up together analogously for their

discussions hereunder:-

13. It appears from the record, i.e., from the order-sheets of the learned

trial court in the suit vide C.S. No.688 of 2014 that,

"on dated 26.11.2015, the defendant(husband of the respondent)

had filed written statement and thereafter, on dated 06.01.2016,

he(defendant) was set ex parte.

The ex parte argument in the suit vide C.S. No.688 of 2014 was

heard by the learned trial court on dated 10.08.2016 and the ex parte

judgment and decree was passed on dated 01.09.2016 and 06.09.2016

respectively."

14. It is concurrent observations of the learned trial court as well as

learned 1st appellate court in their respective judgments and decrees that,

the defendant-Narayan Chandra Sahoo had expired on 30.04.2016, which

was much prior to the hearing of the argument in the suit vide C.S.

No.688 of 2014. Because, the argument was heard on dated 10.08.2016.

So, from the aforesaid order-sheets of the learned trial court and

the judgments of the learned trial court and 1 st appellate court, it is clear

that, much prior to the hearing of the argument in the suit vide C.S.

No.688 of 2014, the sole defendant in that suit, i.e., Narayan Chandra

Sahoo had expired, as, his death was on dated 30.04.2016 and the date of

hearing of argument was on 10.08.2016.

15. The entire order-sheets of the learned trial court in the suit vide

C.S. No.688 of 2014 do not reveal about the passing of any order

exempting the plaintiff as per Order-22, Rule-4(4) of the C.P.C., 1908

from substituting the legal heirs of the deceased defendant-Narayan

Chandra Sahoo. No application was filed or moved on behalf of the

plaintiff for the same.