Most. Bindia Devi And Ors vs Sadashiv Panda And Ors

Heard Mr. Jai Prakash Jha, Counsel for the appellants assisted by Mr. Aishwarya Prakash and Mr. Shree Prakash Jha, Advocates appearing on behalf of the appellants.

Heard Mr. Rajiv Sinha, Counsel appearing on behalf of respondent no. 1 assisted by Mr. Ayush Aditya and Mr. Munna Kumar, Advocates.

Counsel for the appellants submits that the instant proceeding arises out of Title Suit No. 206 of 1996. The said title suit was filed for a declaration of right, title and interest over the suit property and also for setting aside sale-deed dated 25.02.1992 executed by Most. Batashi Devi (defendant second party in the original suit) in favour of Sadashiv Panda and Nageshwar Panda (defendants first party). The plaintiffs also prayed for yet another relief of recovery of possession and permanent injunction restraining the defendants from transferring the suit property in any manner. In the said title suit, the plaintiffs/petitioners filed an application under Order XXXIX Rule 1 C.P.C. praying for injunction and subsequently, an application under Order XL Rule 1 C.P.C. was filed by the petitioners for appointment of receiver as it was alleged that the defendants were alienating the suit property. This application under Order XL Rule 1 C.P.C. was rejected by learned Sub-judge, Dumka on 27.07.1998, against which the plaintiffs filed Civil Miscellaneous Appeal No. 1 of 1999, which was transferred to the 1st Additional District Judge, Dumka.

The counsel further submits that during the pendency of the Miscellaneous Appeal No. 1 of 1999, Most. Batashi Devi (defendant 2nd party) died issueless on 19.06.2004 and Pradeep Panda (plaintiff no. 2) also expired on 24.10.2002. Accordingly, an application dated 23.07.2004 was filed for substitution along with an application for condonation of delay in filing the petition for substitution of legal heirs of Pradeep Panda. The learned court below dismissed the Miscellaneous Appeal on the ground of abatement for not substituting the legal heirs of Pradeep Panda who died on 24.10.2002 and was appellant no. 2 in Miscellaneous Appeal No. 1 of 1999.

The counsel for the appellants submits that the appellate authority dismissed the entire appeal on account of abatement, although the cause of action in connection with the surviving appellants was still existing. He further submits that the petition for substitution on account of death of Pradeep Panda was duly filed and there was a delay of only one and a half years, which was duly explained before the authority below.

The counsel has referred to a judgment passed by Hon'ble Supreme Court reported in AIR 2002 SC 1201 to submit that in the matter of substitution, a liberal view is required to be taken and in the instant case, the villagers were illiterate and rustic and accordingly, the substitution in connection with the deceased persons ought to have been allowed by the appellate authority in Civil Miscellaneous Appeal No. 1 of 1999. He submits that otherwise also, the cause of action survived so far as the present appellants are concerned and accordingly, the proceedings could not have been treated as abated.

Counsel for the respondent nos. 1 and 2, on the other hand, by referring to the counter-affidavit, submits that after passing of the impugned order in this case, Title Suit No. 206 of 1999, has been treated as abated vide order dated 05.01.2006 in view of the impugned order before this Court and accordingly, he submits that nothing survives in this appeal.

The counsel for the respondent nos. 1 and 2 has further raised a preliminary objection in connection with the continuation of this proceeding by referring to the interlocutory application filed by the appellants being I.A. No. 6222 of 2013 which was filed for substitution of respondent no. 2 (Nageshwar Panda who was defendant no. 2 in the original suit) and he submits that in the said application, legal heirs of Nageshwar Panda has been mentioned as follows:

"(i) Smt. Reni Devi

(ii) Lalan Panda, son of Late Nageshwar Panda

(iii) Rimjhim Panda, D/o Nageshwar Panda, who have already made their appearance in the case through their lawyer."

The counsel further submits that when this interlocutory application was taken up by this Court on 10.02.2014, the following order was passed:

"I.A. No. 6222 of 2013 has been filed to delete the name of Nageshwar Panda- respondent no. 2, who died on 09.03.2010. There is no need to substitute his legal heirs because they are already on record and appearing by filing Vakalatnama.

Counsel for the respondents submits that the name of respondent no. 2 be deleted without being substituted by his legal heirs at the risk of appellants.

Prayer is allowed.

The name of respondent no. 2- Nageshwar Panda is permitted to be deleted for which the Counsel appearing for the appellants shall do the needful to struck the name of respondent no. 2 from the cause title page of memo of appeal.

I.A. No. 6222 of 2013 stands disposed of."

Counsel for the respondents further submits that the name of the legal heirs and successors which has been mentioned in I.A. No. 6222 of 2013, does not find mention in the party position of the appeal and accordingly, the legal heirs and successors of Nageshwar Panda are neither on record nor have been substituted in the instant proceedings. He submits that the sale-deed involved in this case was executed in favour of Nageshwar Panda and one Sadashiv Panda and as the legal heirs of Nageshwar Panda has not been substituted therefore, in view of the judgment passed by Hon'ble Supreme Court reported in AIR 1966 SC 1427, no relief can be granted to the appellants as the appeal has abated in its entirety and no relief can be granted to the appellants. He has referred to para 7 of the judgment passed in the aforesaid case.

After hearing the counsel for the parties and after going through the materials on record, this Court finds that the Miscellaneous Appeal No. 1 of 1999 was filed before the learned District Judge under Order XL Rule 1 C.P.C. in connection with the appointment of receiver.

This Court finds that the learned appellate court, while passing the impugned order dated 18.03.2005, has taken into consideration that there was no explanation of delay in filing the substitution petition right from 24.10.2002 to 22.06.2004 for a period of about more than one-and-a-half years and has accordingly held that the appeal filed by Pradeep Panda, who died long back on 24.10.2002, stood abated.

So far as the surviving cause of action vis-à-vis the other appellants is concerned, this Court finds that during the pendency of this appeal, the respondent no. 2 namely Nageshwar Panda, who was defendant no. 2 in the suit in whose favour the sale-deed was executed, had expired and although in I.A. No. 6222/13 a statement regarding the legal heirs of Nageshwar Panda has been made, but, from the perusal of the order dated 10.02.2014, it appears that a submission was made by the counsel for the appellants that there is no need to substitute his legal heirs by stating that the legal heirs are already on record.

From the perusal of the names of the legal heirs mentioned in I.A. No. 6222 of 2013 and upon comparison from the cause-title of the instant case, this Court finds that the legal heirs of Nageshwar Panda are not on record and have ultimately not been substituted. It has been held by the Hon'ble Supreme Court in the aforesaid judgment reported in AIR 1966 SC 1427 (Pandit Sri Chand and Ors. Vs. Jagdish Parshad Kishan Chand and Ors. ), that the entire appeal would abate when the success of the appeal may lead to coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore, would lead to courts passing a decree which will be contrary to the decree, which has become final with respect to the same subject matter between the appellant and the deceased respondent.

This Court finds that the matter related to appointment of receiver and the property involved in this case is in connection with the sale-deed executed in favour of the defendant no. 1 as well as defendant no. 2 (Nageshwar Panda) who has expired.

No relief in this case can be granted against Nageshwar Panda, who has expired and not been substituted. Therefore, this Court finds that no relief in the instant case can be granted to the appellants and the entire appeal is abated.

So far as the final order of abatement passed by the original Court in the title suit is concerned, this Court has no concern with the same in as much as the said order is not under challenge before this Court.

Accordingly, this miscellaneous appeal is hereby dismissed.

Pending interlocutory application, if any, stands dismissed as not pressed.