Asit Kumar Pattanaik & Others vs Purna Chandra Pattanaik And Others Vs

Sashikanta Mishra, J

All these Interlocutory Applications being intricately  connected were heard together and are disposed of by this common order.

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.

A brief reference to the relevant facts would be in order at the outset.

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.

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.

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.

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.

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.

I have given my anxious consideration to the averments in the instant applications as also contentions raised on behalf of the parties.

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.

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.

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.

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