The main legal point established in the judgment is the interpretation of the Civil Procedure Code provisions related to non-joinder of parties and non-substitution of legal representatives, and the enforceability of court orders until declared void by a competent authority.

JUDGMENT

B.N. MAHAPATRA, J

1. This Civil Revision petition has been filed by the Petitioner (Defendant No.3 in Trial Court) with a prayer to set aside the Order Dated 06.10.2009 passed by the Civil Judge (Sr. Division) Kendrapara in C.S. No.317 of 2005 on the ground that the said order has been seen passed illegally.

2. Revision Petitioner's case in a nutshell is that Opposite Party No.1 as Plaintiff filed Civil Suit No.317 of 2005 in the Court of Civil judge (Sr. Division). Kendrapara for permanent injunction restraining the Defendant from executing the registered sale deed in favour of any outsider/stranger in respect of any portion of the suit land & cutting & removing any tree of & demolishing the Joint residential house along with further prayer for his preferential right to purchase the share of Defendants. The Plaintiff & Defendant No.1 are two sons of late Khatu Barik & Defendant No.2 is the widow of said Khatu Barik. According to the Plaintiff, the suit land is the joint family home stead & there has been no partition by metes & bounds amongst the parties. Defendant Nos. 1 & 2 sold their share in the suit land to Defendant No.3, who is a stranger, by two registered sale deeds dated 27.08.2005.

3. Defendant No.3's case before the Trial Court is that the suit is barred for non-joinder of parties & there is no cause of action. There was partition by metes & bounds amongst the parties & for legal necessity the Defendants 1 & 2 have sold their share in the land to Defendant No.3 & therefore, the suit is not maintainable. During pendency of the suit Defendant No.2 died & Plaintiff filed a petition to delete her name as she had no other legal heir & accordingly, Defendant No.2 was deleted by Order Dated 1.9.2008 the suit was taken up for hearing & in course of evidence the Plaintiff was examined & in his statement he stated that his father died in the year 1993 & he had not made the three daughters (of late Khatu Barik) as parties to the suit. At that stage, Defendant No.3 filed an application on 25.8.2009 to abate the suit for non-substitution of the daughters of late Khatu Barik & Urmila Barik (Defendant No.2) to which the Plaintiff filed objection. On 6.10.2009 the Trial Court rejected the said application dated 25.8.2009 of Defendant No.3 on the ground that Defendants did not object to the petition of the Plaintiff for deleting the name of Defendant No.2 & considering the said petition of the Plaintiff on 1.9.2008 the Court allowed the prayer for deletion on the name of Defendant No.2 It is only when the case was posted for hearing, the Defendant filed a petition for abatement. The further reason assigned by the Trial Court is that Defendant No.3 could raise the issue of non-joinder of necessary party at the time of argument. Hence, the present revision petition.

4. Mr. N.C. Pati, Learned Counsel appearing for the Revision-Petitioner submitted that the impugned order is against the law & weight of evidence on record. Non-joinder of parties & non-substitution of the legal representatives of a deceased-party are two separate aspects which, are to be dealt with under Order 1, Rule 9 & Order 22, CPC respectively. The question of Non-joinder of necessary party, no doubt, can be decided as one of the issues at the final stage of hearing of the suit. Where as, non-substitution of the legal heirs of the deceased-party & question of abatement can be dealt with at any time after the death of the deceased. Question of abatement is different from non-joinder of necessary parties. The deceased Defendant No.2 having three daughters, they were required to be substituted. In absence of the said three daughters, the suit has already abated. The Trial Court acted illegally with material irregularities in rejecting the application for abatement of the suit. Such illegal exercise of jurisdiction by the Trial Court amounts to unnecessary wastage of public time & harassment meted out to Defendant No.3.

5. Learned Counsel Mr. N.P. Parija, appearing