JUDGMENT

K.R. Mohapatra, J.

This matter is taken up through hybrid mode.

2. Order dated 17th May, 2011 (Annexure-6) passed by learned 2nd Additional Civil Judge (Senior Division), Cuttack in T.S. No.18 of 1993 is under challenge in this writ petition, whereby an application filed by the Plaintiff-Petitioner under Order 1 Rule 10 CPC to bring on record the legal heirs of deceased Defendant No.3, has been rejected.

3. It is submitted by Mr. Bhuyan, learned counsel for the Plaintiff-Petitioner that petition dated 19th April, 2011 was filed to implead legal heirs of deceased Defendant Nos.3 and 5 as Defendants. By order under Annexure-6 the said application was allowed in part permitting the Petitioner to bring on record the legal heirs of deceased Defendant No.5 only. However, prayer to implead the legal heirs of deceased Defendant No.3 was rejected. Hence, this writ petition has been filed.

4. It is his submission that since Defendant No.3 during his life time was set ex parte, the Plaintiff-Petitioner had filed an application under Order XXII Rule 4 (4) CPC to dispense with his substitution. But, the said application was rejected and due to non-substitution the suit abated against deceas