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Judgment
K.R. Mohapatra, J
This matter is taken up through hybrid mode.
Order dated 20th July, 2023 (Annexure-5) passed by learned Additional Senior Civil Judge, Sambalpur in Civil Suit No.50 of 2021 is under challenge in this CMP, whereby dismissing an application under Order XXII Rule 4 CPC for substitution of Defendant No.1, learned trial Court held the suit as abated against him.
It is submitted by learned counsel for the Petitioner that the Defendant No.2 is the Petitioner in this CMP. The suit was filed by the Plaintiff-Opposite Party for declaring the sale deed executed in favour of the Defendants as invalid and for permanent injunction. The suit was filed in the year 2021, but much prior to that date, Defendant No.1 had died on 23rd October, 2004. However a misconceived application was filed by the Plaintiff-Opposite Party under Order XXII Rule 4 CPC along with allied applications for substitution of deceased-Defendant No.1. Since the suit was initiated against a dead person, learned trial Court rightly dismissed the said application holding it to be misconceived. While dismissing the application under Order XXII Rule 4 CPC, learned trial Court held that the suit should have been treated to be abated against Defendant No.1for all the purpose.
It is his submission that the sale deed in question sought to be declared invalid and void was executed in favour of both the Defendants. Thus, the suit should have been abated as a whole, as the suit if decreed, would end in an indivisible decree. In support of his submission, he relied upon the case of Damodar Patra and others vrs. Kanchan Sahuani and others, reported in AIR 1963 Orissa 140, in which it is held as under:
“14) Even assuming that there was severance of Joint status between defendants 4 and 5 with respect to their properties, it cannot be said that the severance of Joint status extends to every action of theirs and to the trespass itself. Complete strangers having absolutely no blood relationship or no unity of title and possession may be joint tort-feasors. Mere proof of severance of joint status in respect of the joint family properties would not establish that defendants 4 and 5 are not joint tort-feasors. Even assuming that they were not joint tort-feasors and each one was a trespasser with respect to half the interest in items 6 to 12 and 14, the suit would still be incompetent against defendant No. 5.
This is based on the principle that the right, title and interest Inter se between, defendant 5 and the legal representatives of defendant No. 4 cannot itself be determined in the suit in the absence of the legal representatives of the deceased defendant No. 4. Such determination would affect the rights of the legal representatives. Even if their rights are not affected, the decree passed by the court determining their interest inter se vis-a-vis the plaintiff is not binding on them and cannot be enforced. On this basic principle even if the finding of the courts below that there was severance of joint status between defendants 4 and 5 is accepted, the suit would be incompetent against defendant No. 5.”
4.1 He, therefore, submits that the suit should abate as a whole.
Considering the submission made by learned counsel for the Petitioner and on perusal of the record, this Court finds that Defendant No.1 had died on 23rd October, 2004, i.e., much prior to the filing of the suit. Thus, the suit was filed against a dead person. Question of abatement only comes when during pendency of the suit a party dies and is not substituted. That is not the position in the instant suit. However, learned trial Court observed that suit to be regarded as abated against Defendant No.1. Effect of abatement of a suit against a party can only be taken into consideration at the time of hearing of the suit. In the instant suit, that stage has not come. Thus, the case law relied upon by Mr. Guru, learned counsel for the Petitioner of is no assistance to his case.
It further appears that the petitioner-Defendant No.2 has not made such a prayer before learned trial Court. In the facts and circumstance of the case, since the petition under Order XXII Rule 4 CPC has already been dismissed holding it to be misconceived nothing remains to be interfered with.
In view of the observation made above, this Court without interfering with the impugned order disposes of the CMP.
Issue urgent certified copy of this order be granted on proper application..
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