KUSUN SAMAL Vs. BANAMALI ROUL
HIGH COURT OF ORISSA
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(1.) TO appreciate the controversy facts may be stated in chronological order. Title suit No. 191 of 1952 filed by 27 plaintiffs against 17 defendants was decreed on 13-8-1956. Title Appeal No. 154 of 1956 filed by the defendants against the judgment decreeing the plaintiffs suit was dismissed. Second Appeal No. 295 of 1959 filed by the defendants was allowed on 22-12-1961. During the pendency of the second appeal, on 23-4-1960 the plaintiffs took delivery of possession of the propertv as the defendants failed to offer security as ordered by the High Court. After their success in the second appeal the defendants filed Misc. Case No. 383 of 1962 under Section 144. Civil P. C. for restitution of Sch. A properties consisting of six acres of land and mesne profits of Rs. 22. 764/- from 22nd of April. 1960 onwards. On 23-12-1965 the Misc. Case was allowed in favour of the defendants. Plaintiffs filed Misc. Appeal No. 15 of 1966 in January, 1966. Madhu Khuntia (appellant No. 19) died on the 30th of October, 1967. On 28th of March, 1968 sons and legal representatives of Madhu Khuntia filed an application far substitution. They are Parsu. Panchu, Kalandi, Golakh, Champi Bewa and Janhi bewa. On 4th of February. 1969 the advocate for the petitioners filed a memo endorsing no instructions. Accordingly the application for substitution was dismissed on 7-8-1969. On 22-8-1969 Pahali Khuntia, a son of Madhu Khuntja who was not a party to the substitution application filed on 28-3-1968, made an application for recalling the order dated 7-8-1969 dismissing the substitution application. On 17-9-1969 this application was dismissed as a copy of the same was not served on opposite parties' advocate. On 22-7-1970 the appellants filed an application to recall the orders dated 7-8-1969 and 17-9-1969 This application was reiected on 28-10-1970. Against this order the civil revision has been filed.
(2.) LAW is now well settled that an application for restitution under Section 144 of the Civil Procedure Code is an application for execution (See AIR 1965 SC 1477 mahijibhai v Manibhai and AIR 1966 SC 1194, Macbool Alam Khan v. Mst. Khodaiia ). By virtue of Order 22. Rule 12, Civil P. C. the doctrine of abatement has no application to execution proceedings. That rule says that nothing in Rules 3, 4 and 8 shall apply to Proceedings in execution of a decree or order. The abatement in this case did not occur during the pendency of the execution proceeding. It was during the pendency of the appeal. It has now been authoritatively pronounced that the prohibition in Order 22, Rule 12, Civil P. C. has no application to appeals against orders passed in execution proceedings (See AIR 1960 Orissa 14. Surendranath Patnaik v. Dassarathi Dutta ).
(3.) AS has already been stated, Madhu Khuntia died on 30th of October, 1967. The first application for substitution was filed on 28-3-1968. after 90 days. Whatever it mav be, this application was dismissed on 7-8-1969. The second application for substitution was filed on 22-8-1969 by one of the sons. Again that application was dismissed on 17-9-1969. This shows that the appellants were very negligent in the matter of substitution. No. sufficient cause has been shown as to why the delay will be condoned and abatement set aside. The learned Additional District Judge was. therefore, right in rejecting the application for substitution.;
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