JUDGMENT

A.K. Rath, J.

1. In this appeal under Clause 10 of the Letters Patent, the appellant has challenged, inter alia, the judgment and order dated 31.1.2014 passed by the learned Single Judge in W.P. (C) No. 6499 of 2009, whereby and whereunder, the learned Single Judge allowed the writ petition and set aside the order dated 15.9.2008 passed by the learned District Judge, Puri in R.F.A.No.29 of 2005. By order dated 15.9.2008, the learned District Judge, Puri allowed the application filed by the respondent no.2 for substitution, condonation of delay and setting aside abetment and transposed the respondent no.2 to appellant.

2. Sans details, the short fact of the case is that the appellant and respondent as plaintiffs laid a suit for declaration of right, title and interest over the properties appertaining to khata no.88 covering various plots of mouza-Sipasarubali, Puri, area Ac.30.99 dec. in the Court of the learned Sub-Judge, Puri against Hasmukhlal Ballav Das Desai, which was registered as T.S.No.118 of 1988. Be it noted that the appellant-Piyush Husmukhlal Desai is the son of Hasmukhlal Ballav Das Desai. The written statement was filed by Hasmukhlal Ballav Das Desai-defendant admitting the claim of the plaintiffs. The suit was decreed. Thereafter, Hasmukhlal Ballav Das Desai through his power of attorney holder instituted a title suit, for a declaration that the decree passed in T.S.No.118 of 1998 was a nullity, in the Court of the learned Civil Judge (Senior Division), Puri, which was registered as T.S.No.123 of 2000. The said suit was subsequently transferred to the learned Additional Civil Judge (Senior Division), Puri and renumbered as Title Suit No.119 of 2001. In the said suit, the respondent and appellant herein were arrayed as defendants 1 and 2. Pursuant to issuance of summons, the respondent only entered appearance and filed written statement denying the assertion made in the plaint. The said suit was dismissed. Challenging the judgment and decree dated 24.12.2004 and 7.1.2005 passed by the learned Civil Judge (Senior Division), Puri in T.S.No.119 of 2001, plaintiff-Hasmukhlal Ballav Das Desai filed R.F.A.No.29 of 2005 in the Court of the learned District Judge, Puri. In the said appeal, the respondent and appellant were arrayed as Respondents 1 and 2 respectively. Pursuant to issuance of notice, respondent no.1 entered appearance. The present appellant, who was respondent no.2, had chosen not to appear in spite of valid service of notice. During pendency of the appeal, the sole appellant died on 9.10.2006. While the matter stood thus, the respondent no.2 represented through his power of attorney holder filed an application under Order 22, Rule 3 C.P.C. praying to substitute the legal representatives of the appellant along with two other applications for condonation of delay and setting aside the abatement. The learned District Judge allowed the application for condonation of delay, setting aside the abetment and eventually allowed the application for substitution by order dated 15.9.2008. By the said order, the respondent no.2 was also transposed as appellant.

3. The present respondent challenged the order dated 15.9.2008 of the learned District Judge, Puri passed in R.F.A.No.29 of 2005 before this Court, being W.P.(C) No.6499 of 2009, which was allowed by the learned Single Judge.

4. We have heard Mr. D.C.Mohanty, learned Senior Advocate and Mr.R.N.Acharya, learned Advocate for the appellant and Mr.J.K. Tripathy, learned Senior Advocate and Mr.B.P.Tripathy, learned Advocate for the respondent.

5. Mr.Mohanty, learned Senior Advocate submitted that during pendency of the appeal, Hasmukhlal Ballav Das Desai, the father of the appellant-Piyush Hasmukhlal Desai died on 9.10.2006 leaving behind his legal heir and successor. Since the right to sue survives, learned District Judge has rightly allowed the application for substitution and transposed the respondent no.2 to appellant. He further submitted that by playin