The main legal point established in the judgment is that non-substitution of legal representatives leading to conflicting judgments would result in abatement of the appeal.

P. K. TRIPATHY, J.

( 1 ) PLAINTIFFS/respondents represented by Mr. D. K. Mohapatra, learned advocate, have filed Misc. Case No. 1066 of 1999 on 15-10-1999, to abate the appeal because of non-substitution of the legal representatives of Respondent Nos. 11, 12, 14, 18, 20, 21 and 33.

( 2 ) APPELLANTS have filed Misc. Case Nos. 771, 772 and 773 all of 1988, reporting that respondent No. 20 died on 9-5-1982 and therefore, the delay be condoned, abatement be set aside and the legal representatives be substituted.

( 3 ) APPELLANTS have filed Misc. Case Nos. 366, 367 and 368 all of 2000 with the prayer to substitute the legal representatives of respondents 12, 14 and 33 after condoning the delay and setting aside abatement. Out of them Respondent No. 12, died on 15-1-1991, Respondent No. 14, died on 14-1-1988 and Respondent No. 33 died on 24-9-1988.

( 4 ) IT appears from the appeal record that after the death of Respondent No. 21, as per order No. 37 dated 13-5-1991, name of that respondent was expunged from record on the submission of appellants and at their risk. Similarly, as per Order No. 54 dated 29-9-1994, the appeal was dismissed as against Respondent Nos. 11 ad 18.

( 5 ) AFTER taking note of the aforesaid factual position from the case record of First appeal No. 3 of 1977 and before dealing with the applications relating to substitution filed by the appellants and the application relating to recording of abatement of the appeal and also its dismissal as prayed by the plaintiffs/respondents, it is appropriate to reflect in brief the case of the parties and the decision of the trial Court.

( 6 ) DESCENDANTS of Goura Hari through his three sons Chandra Mohan, Nilamoni and Sartuka prosecuted Title Suit No. 64/ 37 of 1971-1975 in the Court of Subordinate Judge, Rairangpur. Originally, they were 27 numbers of plaintiffs but legal representatives of some of them were substituted in the suit. That suit was instituted against nine defendants. All the defendants except defendant No. 9, challenged the impugned decree and have preferred the present First Appeal. Out of them, the defendant Nos. 1, 2, 3, 5 and 8 presently being represented through legal representatives along with Defendant nos. 4, 6 and 7, figuring as the ten appellants. The co-defendant No. 9, Pitambar Mohanta has been added as Respondent No. 33. Out of the 27 plaintiffs, some of them being substituted in course of the suit, they figure as Respondent Nos. 1 to 32 in the First Appeal.

( 7 ) PLAINTIFFS filed the suit, with the prayer for declaration of title and recovery of possession of the suit schedule land along with the prayer for mesne profits from the income because the suit land remained in possession of the receiver in a proceeding under section 145, Cr. P. C. Plaintiffs pleaded that the ancestor of the defendants having incurred loan was to satisfy a decree as judgment-debtor in Execution Case No. 15 of 1930-31 of the Court of Munsif, Karanjia, and for satisfaction of that decree the suit land was put to auction and Chandra Mohan on behalf of the joint family participated in that auction sale and purchased the land as the highest bidder. After confirmation of the Court sale, delivery of possession was given as per Order passed on 12-1-1942 in misc. Case No. 5 of 1941-42. In the year 1963, Defendant Nos. 1,5,6 and 7 filed Title suit No. 59/13 of 1963 against defendant no. 8 and they obtained a decree and thereafter on the strength of that decree, on 6-5-1967, defendant Nos. 1 to 4 disturbed the possession of the plaintiffs. According to the plaintiffs the decree in Title Suit No. 59/13 of 1963 is not binding on them having been passed behind their back. That dispute between the parties lead to a proceeding under Section 145, Cr. P. C. in which possession of the defendants was declared and that was also maintained in the Revisional Court. With that background and cause of action, they filed the aforesaid suit with the above noted prayers.

( 8 ) DEFENDANTS 1,