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Judgment
Mruganka Sekhar Sahoo, J.
Invoking the Articles 226 and 227 of the Constitution of India, order dated 27.09.2016 and order dated 04.10.2016 passed by the learned Civil Judge (Senior Division), Anandapur in T.S. No.2/2 of 1975-76 (Final Decree) has been challenged.
By order dated 27.09.2016 of the learned Civil Court, the report of the Civil Court Commissioner was accepted in part, where there is no objection amongst the parties for execution of the decree. Regarding the rest part, the parties to the suit (Final Decree) were directed to make allotment of share amongst them amicably. By order dated 04.10.2016, adjournment sought for by the defendant/opposite party no.6 was rejected. The operative portion of the order dated 04.10.2016 dealing with the objections to the preliminary decree is reproduced herein:
“…. Gone through the case record and found that there is force in the objection. Hence, objection raised by the plaintiff/petitioner, Defdt./O.P.1, 5 series. Defdt/O.P.6, Defdt/O.P.3 is accepted. Where as the contention of Defdt./O.P.2 is concerned law is well settled that this court cannot go beyond the preliminary decree. So he is at liberty to move to higher forum, if required.
Issue writ to the Civil Court Commissioner, afresh to make partition to aforesaid areas as mentioned in the objection by parties and put up on 07.11.16 awaiting his report.”
The matter involves the final decree proceeding out of two civil suits. One of the suit T.S. No.2/2 of 1975-76 was instituted on 08.01.1975 by the present opposite party namely Shri Upendra Prasad Debata against the predecessor in interest of the present petitioner Shri Benudhar Debata and nine others. The suit ended up before this Court in F.A. No.213 of 1977 which was disposed of by the Division Bench of this Court by order dated 14.11.1994 in terms of the petition of compromise filed by the parties.
Thereafter writ was issued on 22.01.1998 by the learned trial court for partition of the suit property after the decree was redrawn by the learned trial Court as per the directions of the Division Bench by order dated 14.11.1994 in F.A. No.213 of 1977.
The learned trial court by order dated 03.08.2009 had redrawn the preliminary decree. Thereafter by interim order dated 13.05.2010 passed by this Court, the final decree proceeding before the learned trial court was stayed. The stay order was vacated on 25.01.2012. Thereafter, the report of the Civil Court Commissioner was filed on 19.11.2012.
The order dated 02.12.2009 by the learned trial court was modified by order dated 01.10.2013 in terms of the order passed by this Court in W.P.(C) No.2736 of 2010 and the plaintiff was directed to take steps for issuance of writ and writ was issued by the Civil Court on 06.02.2014. Thereafter, further writs were issued on 05.07.2016 and 04.10.2016 by the learned trial court.
The final decree proceeding before the learned Trial Court was stayed by order dated 16.12.2016 in Misc. Case No.1934 of 2016 arising out of the present CMP.
The stay order stood vacated before the learned trial court as per the direction of the Hon’ble Supreme Court in Asian Resurfacing of Road Agency Pvt. Ltd. and another Vs. Central Bureau of Investigation:2018(16) SCC 299 and the matter proceeded further. Apparently, beyond 16.11.2021 no interim order is operating and the final decree proceeding has proceeded further.
Mr. Lenka, learned counsel appearing for the opposite party nos.4, 5, 7, 9 and 10 raises serious objection to the averments made in the I.A. seeking substitution, to the application seeking setting aside of abatement as well as to the application seeking condonation of delay. He highlights the facts and circumstances that the plaintiffs-petitioners are well aware of the demise of the opposite parties, the delay is not at all explained much less satisfactorily.
The report dated 10.08.2026 received from the learned trial court regarding the further developments in the pending final decree proceeding after 16.11.2021 is reproduced herein:
“17.On dtd. 06.03.2023, the counsel for the plaintiff intimated this court in shape of memo that the plaintiff (Upendra Prasad Debata) has already died. Further the order sheet dtd.14.08.2023 reveals that the defendant no.1 (Rangadhar Debata) has died on 22.11.2022 and the record was posted for substitution of LRs of deceased plaintiff and defendant no.1.
On dtd. 13.10.2023, the LRs of the Plaintiff appeared before this Court and filed substitution petition to substitute them in place of deceased plaintiff to proceed the final decree proceeding. The petition was allowed on dtd. 17.11.2023 and it was directed to file consolidated plaint and carry out substitution. The LRs of deceased D-1 & D-2 filed petition on dtd.14.05.2024 to substitute them in place of the said deceased defendants and the said petition was allowed on dtd.05.09.2024 and direction was made to file consolidated plaint and to carry out substitution.
On dtd. 12.12.2025, the Counsel for the plaintiff filed a memo stating that defendant no.6 has died. As no substitution made in respect of deceased D-6, the case was abated against the defendant no.6 on dtd. 06.04.2026.
18.Now the case is posted to 24.08.2026 for filing of consolidated cause title of the final decree proceeding by substituting the LRs of deceased plaintiff and defendant nos.1 & 2.”
Having heard the learned counsel for the petitioner and the opposite parties, the following questions of law were formulated as reflected in the order dated 05.10.2026 at paragraph-8 and are reiterated herein:
When the present opposite parties, who are the plaintiffs before the learned trial court, have substituted all the defendants whether they can take a plea before this Court that they have no knowledge of some of the defendants to have passed away and that they became aware after the present opposite parties who are defendants before the learned trial court, through their counsel, filed memo dated 12.08.2026 under Order 22 rule 10A, intimating this Court that the opposite parties no.1, 2 and 4 have passed away. The date of passing away of the defendants is specifically mentioned in the memo.
As the plaintiffs have allowed abatement of the suit against defendant no.6 before the trial court, whether this Court can substitute said defendant no.6 at this stage in the CMP.
Learned counsel for the petitioner had adjournment on 05.10.2026 to address the issue that arises further before this Court: whether single Bench of this Court by exercising its jurisdiction under Article 226 and 227 of the Constitution of India in CMP, can reopen a decree drawn pursuant to order of a division Bench in F.A. No.213 of 1977 disposed of by order dated 14.11.1994.
However, it is submitted by the learned counsel for the petitioner that the petitioner has nothing to challenge in the order passed by the Division Bench of this Court dated 14.11.1994 in F.A. No.213 of 1977.
For reference, the records of the F.A. No.213 of 1977 was called for and perused. The F.A. was filed by Rangadhar Debata, Upendra Prasad Debata (present respondent) being the respondent. The order of the Division Bench in disposing of the said F.A. dated 14.11.1994 is reproduced herein:
“There were 10 respondents in this appeal out of whom respondent no.7 had died in the trial court. His name stood deleted from the memorandum of appeal, vide order no.13 dated 28.2.1980. Respondents 8 to 10 were defendants 8 to 10 in the trial court. In the decree which was challenged in this appeal no right was created in their favour and, therefore, a prayer was made to the Court to dismiss the appeal as against them (vide order no.33 dated 19.11.1980). A compromise petition was filed in which respondents 1, 3, 4, 5 and 6 have joined. The compromise petition was accepted and, therefore, the appeal was disposed of on compromise as against them. Therefore, the appeal survived only as against respondent no.2. The appellant was required to file Paper Books on compulsory documents within a period of 5 weeks form 19.3.81. The said order was peremptory in the sense that failing compliance the appeal would be dismissed as against respondent no.2. The appellant did not comply with the said order. Therefore, the effect would be that the appeal still stand dismissed as against respondent no.2. This is so because, the appeal stood disposed of as against the other respondents previously as already stated. Thus the order recording the dismissal of the appeal would mean that the appeal stood dismissed as against respondent no.2.
The appeal has thus been disposed of. A decree has to be drawn up incorporating the petition of the compromise as a part of the decree.”
Pursuant to the order dated 14.11.1994 directing the decree to be drawn up the decree was signed and sealed on 12.12.1994 by the Deputy Registrar of this Court. Thereafter Misc. Case No.305 of 2008 was filed by the respondent no.3 in the appeal to recall the order dated 14.11.1994. The said misc. case was considered by a coordinate Bench presided by learned Single Judge and was dismissed by order dated 13.02.2013.
Thereafter, Misc. Case No.332 of 2014 was filed U/s.52 of the C.P.C. by Sri Upendra Prasad Debata-respondent with the following prayer:
“… The petitioner therefore humbly prays that your lordships may kindly be graciously pleased to allow this petition and further be pleased to modified the decree dtd.12.12.1994 in F.A. No.213/1977 by substituting the decree as follows:
“The appeal is disposed of in terms of petition of compromise and incorporation of the petition of compromise do form part of the decree. …”
The coordinate Bench of learned Single Judge disposed of the said Misc. Case No.332 of 2024 by order dated 15.04.2015, which is reproduced herein:
“Heard.
In view of the specific order passed on 14.11.1994 that the decree has to be drawn up incorporating the petition of the compromise as the part of the decree and thereafter on12.12.1994, the decree has been sealed and signed, the learned counsel for the petitioner does not further press this Misc. Case for its disposal on merit as the grievance according to him has already been redressed.
The Misc. Case are accordingly disposed of. The case record be returned back to the Court below.”
The petitioner-Benudhar Debata was not a party to the first appeal. He has stepped into the shoes of Shankarsan Debata, who was the defendant in the suit. Now after unfortunate demise of Benudhar Debata, the present petitioners Sekhar Prasad, Amar Prasad and Samir Prasad being his three sons have substituted themselves in the present CMP. Before the trial Court, the present opposite parties have been substituted by filing application. Therefore, the demise of the said parties is well within the knowledge of the petitioner. Before this Court in the CMP, I.A. No.1860 of 2026 was filed on 23.09.2026 which is almost after two years of filing of the I.A. before the trial court for substitution. Therefore, the delay is filing the I.A. cannot be condoned. Accordingly, the abatement cannot be set aside.
The contentions of the petitioners in the present case have to be and are rejected as it has the effect of revisiting/redrawing the decree that is pursuant to order dated 14.11.1994 passed by the Division Bench of this Court in the F.A. No.213 of 1977.
The efforts to revisit the decree drawn by order of the Division Bench has earlier failed in view of the order dated 13.02.2013 in Misc. Case No.305 of 2008 (arising out of F.A. No.213 of 1977) and order dated 15.04.2015 in Misc. Case No.332 of 2014 (arising out of F.A. No.213 of 1977). It is held that the present petitioners are bound by the modified preliminary decree passed by the learned trial court in terms of the decree of this Court dated 12.12.1994; having stepped into the shoes of the predecessor, who was/were party before this Court, present petitioners cannot have a better right so as to challenge the order in the F.A. and the resulting decree which have attained finality as they have never been challenged before the higher forum.
The CMP is dismissed being devoid of any merit, the petitioners not being entitled to any of the reliefs sought for.
Costs reluctantly made easy.