NIDHI PADHI AND ORS. Vs. BRAMHANANDA PADHI AND ORS.
LAWS(ORI)-1973-4-34
HIGH COURT OF ORISSA
Decided on April 02,1973

Nidhi Padhi And Ors. Appellant
VERSUS
Bramhananda Padhi And Ors. Respondents

JUDGEMENT

B.K. Patra, J. - (1.) PETITIONER No. 1 Digambar Padhi the predecessor -in -interest of Petitioners 2 to 7, Petitioner No. 8, Petitioner No. 9 and Somanath Padhi the predecessor -in -interest of Petitioners 10 to 13 filed Title suit No. 367 of 1954 against opposite party No. 1. Braja Ballav Badapanda, the predecessor -in -interest of opposite parties 2, 3, 6, 7 and 8 opposite party No. 4 and opposite party No. 5. Thus there were five Plaintiffs and four Defendants in the suit which was one for declaration of easementary right of way and removal of obstruction. That suit was dismissed in the trial Court. The Plaintiffs preferred an appeal in the Subordinate Judge 's Court, Balasore (M.A. 7/35 of 62/60). During the pendency of the appeal. Somanath Padhi who was Plaintiff No. 4 died on 12 -11 -1961 but no substitution was made. Obviously in ignorance of the death of Somanath Padhi, the appeal was heard and was allowed on 29 -9 -1962 by the Additional Subordinate Judge, Balasore. After the disposal of the appeal and before the second appeal was preferred, Braja Ballav Badapanda Defendant No. 2 died on 14 -11 -1962. Thereafter, Defendants 1, 3 and 4 (opposite parties 1, 4 and 5 herein) along with the legal representatives of Brajaballav Badapanda preferred a second appeal (Second Appeal No. 400 of 1962) in this Court on 21 -12 -1962. Permission for impleading the legal representatives of Brajaballav Badapanda had also been obtained under Rule 5 of Chapter VI of the Rules of the High Court of Orissa vide order No. 4 dated 8 -10 -1963.
(2.) ONE of the grounds urged in this Second Appeal (S.A. 400/62) was that since Somanath Padhi, Plaintiff No. 4 died during the pendency of Munsif Appeal No. 7/35 of 1962/60 in the first Appellate Court and his legal representatives were not brought on record, that appeal (M.A. 7/35 of 1962/60) abated as a whole. As soon as this objection was raised, an application was filed on behalf of the Plaintiff for substitution of the legal representatives of Somanath Padhi, Second Appeal No. 400 of 1962 was accordingly remanded to the first Appellate Court for a decision on the question of abatement of the appeal as a result of the death of Somanath Padhi. The application filed in this Court for substitution of the legal representatives of Somanath Padhi was also forwarded to the Court for disposal. After remand the first Appellate Court dismissed the appeal on a finding that In the circumstances already stated the appeal had abated as a whole.
(3.) AGAINST this judgment of the first Appellate Court, the Plaintiffs filed Second Appeal No. 55 of 1967 in this Court. Although in Second Appeal No. 400 of 1962, Brajaballav Badapanda 's legal representatives had already been impleaded with the permission of the Court, in the memo of appeal submitted in the Second Appeal No. 55 of 1967, the Plaintiffs impleaded Brajaballav Badapanda as Respondent No. 7. The fact that his legal representatives had already been brought on record in the previous Second Appeal had not been brought to the notice of the Court. In the usual course, therefore, notice was ordered to be served on Brajaballav Badapanda and the serving peon in his report dated 22 -3 -1968 stated that Brajaballav Badapanda was dead. On perusal of the report, the Court by its order No. 21 dated 3 -7 -1969 directed that the legal representatives of Brajaballav Badapanda should be brought on record within a period of seven days. As this order was not complied with an order was recorded on 24 -1 -1969 that the appeal abated against Respondent No. 7. My learned brother A. Misra, J when he heard the Second Appeal No. 55 of 1967 was of the opinion that as the appeal a bated against Respondent No. 7 Braja ballav Badapanda the entire appeal, having regard to the facts of the case, a bated and consequently dismissed the Second Appeal. The present application has been filed to review that judgment.;


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