[Cites 1, Cited by 0]
Orissa High Court
Shantilata Sahu And Others vs Manmatha Nath Sahu And ..... Opposite ... on 1 May, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMAPL No.206 of 2017
Shantilata Sahu and others ..... Petitioners
Represented by Adv. -
M/s. Sourav Suman
Bhuyan, Sujata Sahoo,
Surya Snata Mohapatra,
Sushree Swapnali Nayak,
Saswat Ku Rout
-versus-
Manmatha Nath Sahu and ..... Opposite Parties
others
Represented by Adv. -
Mr. A.P. Bose Sr. Adv.
Mr. S. Mishra
Mr. D.D. Ananda Mishra
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
01.05.2026
Order No.
03. CMAPL No.206 of 2017 & MISC. Case No.122 of 2017
1. This matter is taken up through Hybrid mode.
2. Heard learned counsel appearing for the Opposite Party to the
present application who is Respondent No.1 in the first appeal files
an application in Court today with a prayer to implead the legal heirs
of deceased Opposite Party No.1, namely, Manmanth Nath Sahoo.
3. On perusal of the record, it appears that the Petitioner, as
Appellant, had preferred Regular First Appeal bearing RFA No.285
of 2009 before this Court thereby challenging judgment dated
11.09.2009 passed in C.S. No.106/586 of 2009/2005 whereby the
learned Trial Court had partly decreed the suit of the Plaintiff-
Opposite Party No.1 for partition over the suit scheduled property.
During the pendency of the Regular First Appeal, Respondent No.1
died on 19.08.2020.
4. The Regular First Appeal which was pending before this
Court was dismissed on 11.05.2016 due to non-prosecution before
admission of the appeal. It is stated by learned counsel appearing for
the Petitioner that such fact was not within the knowledge of the
Petitioner-Appellant.
5. Learned counsel for the Petitioner at the outset contended that
the Petitioner being aggrieved by the judgment and decree dated
11.09.2009 passed in C.S 106/586 of 2009/2005 passed by the
Second Additional Sub-Judge, Bhubaneswar, has approached this
Court by filing the above noted R.F.A. while the said R.F.A was
pending for admission, the Appellant-Petitioner failed to appear
before this Court. As a result, of which the above noted R.F.A has
been dismissed due to non-prosecution by virtue of order dated
11.05.2016.
6. On perusal of the order-sheet of the R.F.A No.285 of 2009, it
appears that the said R.F.A was listed on 07.04.2016, however, no
one appeared before this Court when the matter was called. A co-
ordinate Bench of this Court, which was taking up the R.F.A, passed
an order directing filing of requisites for issuance of notice
peremptorily within a period of ten days, failing which, it was
directed that the appeal shall be dismissed without further reference
to the Bench. Since, the direction in order dated 07.04.2016 was not
carried out by the Appellant, the learned Deputy Registrar (Judicial)
by virtue of order dated 11.05.2016, has dismissed above noted First
Appeal due to non-prosecution.
7. So far as the non-appearance of the Appellant before this
Court on 07.04.2016 is concerned, learned counsel for the
Appellant-Petitioner contended before this Court that the brief was
transferred from the office of the earlier counsel to the present
counsel, as a result of which, the Appellant-Petitioner was not aware
of the date and orders passed by this Court. When such fact came to
the notice of the learned counsel for the Petitioner, immediately the
present application was moved with a prayer to recall the aforesaid
order of dismissal and restore the R.F.A. to file.
8. Learned counsel appearing for the Opposite Party, on the
other hand, objected to the restoration of the first appeal on the
ground that the Appellant was negligent in appearing before this
Court on the date fixed. It was also contended that the delay has also
not been explained properly.
9. On perusal of the record, it further reveals that the present
CMAPL was filed in the year 2017 with a prayer to restore the first
appeal and to hear the same on merit. During the pendency of the
present CMAPL application, the Opposite Party No.1 died on
19.08.2020 leaving behind his legal heirs who have been named in
I.A. No.124 of 2026 filed on 01.05.2026.
10. Similarly, Misc. Case No. 122 of 2017 has been filed by the
Petitioner to condone the delay of 338 days in filing the CMAPL
Application for restoration. Considering the grounds taken as well
the submission made by the counsels for the Parties delay of 338
days is hereby condoned subject to payment of a cost of Rs.500/-
(rupees five hundred) to the Orissa High Court Bar Association.
11. Misc. Case is hereby allowed.
12. Considering the submissions made by the counsel for both the
sides, on careful examination of the grounds taken in the CMAPL
application, further keeping in view the facts that a valuable right of
the Appellant is likely to be affected unless the first appeal is
restored, this Court is inclined to allow the present CMAPL subject
to payment of a cost of Rs.1000/- to the welfare fund of the High
Court Bar Association.
13. Accordingly, the R.F.A be restored to file.
14. Heard learned counsel appearing for the respective parties
upon receiving a copy of the I.A. application filed by the
Respondent-Opposite Party under Order-1 Rule-10 CPC, stated
before this Court that it was not within their knowledge that the
Respondent No.1 had died on 19.08.2020. Therefore, he has not
taken any steps for substitution of the legal heirs of the deceased
Respondent No.1. He, further, contended that he has no objection if
the I.A. is filed by Respondent No.1 in Court for addition of LRs of
deceased Respondent No.1 is allowed and the legal heirs of the
deceased Respondent No.1 as has been indicated in I.A., are brought
on record.
15. Considering the submission made by the learned counsel
appearing for the parties, on careful examination of the facts, this
Court is of the view that the legal heirs of the deceased Respondent
No.1 be brought on record either by filing an application under
Order-22 Rule-4 of the CPC or by considering the application of
legal heirs of deceased Respondent filed under Order-1 Rule-10 of
the CPC. Since in either case the effect would be the same.
However, once one application is allowed, the other is to be ignored.
16. In the present case since the legal heirs of the Respondent
No.1 have filed an application under Order-1 Rule-10 and the
counsel for the Petitioners have no objection to the same, this Court
is inclined to allow then the I.A.
17. Accordingly, the names of the legal heirs of the deceased-
Respondent No.1, who are the Petitioners in the I.A., be
incorporated as Opposite Party Nos.1(a), 1(b) and 1(c) by
substituting them in place of deceased Respondent No.1 as parties to
be present proceeding.
18. Accordingly, the I.A. stands allowed.
( Aditya Kumar Mohapatra )
Judge
Sashikant
Designation: PERSONAL ASSISTANT Page 5 of 5.
