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IN THE HIGH COURT OF ORISSA AT CUTTACK
A.C.BEHERA
Juga @ Juge @ Jugeswar Bhoi – Appellant
Versus
Thipe Bhoiani – Respondent
| Table of Content |
|---|
| 1. introduction and procedural history of the appeal (Para 1 , 2 , 3) |
| 2. nature of the partition suit and its judgment (Para 4 , 5 , 6 , 7) |
| 3. arguments on the abatement of appeal (Para 8) |
| 4. court's reasoning on the abatement (Para 9 , 10) |
| 5. conclusion and dismissal of the appeal (Para 11) |
JUDGMENT :
A.C. BEHERA, J.
1. This 2nd Appeal was heard from both the sides on 11.01.2024 on the sole formulated question as per Order No.12 dtd.18.12.2023, i.e., whether this 2nd Appeal shall abate as a whole for non-substitution of the LRs of the deceased respondent Nos.1, 8, 10 and 13 by the appellant or the abatement of appeal shall be limited to the deceased respondent Nos.1, 8, 10 and 13 only.
2. It appears from the record that, this 2nd Appeal has been preferred against the confirming judgment passed by the 1st Appellate Court in T.A. No.4 of 1995 wherein, the judgment and decree passed by the Trial Court in the suit vide T.S. No.44 of 1983-I has been confirmed.
3. The appellant of this 2nd Appeal was the defendant No.1 before the Trial Court in the suit vide T.S. No.44 of 1983-I and he was the sole appellant in the 1st Appeal vide T.A. No.4 of 1995.
4. The suit before the Trial Co
In partition suits, the appeal abates entirely if any party's legal representatives are not substituted as required, rendering the appeal incompetent.
The abatement of an appeal due to non-substitution of a deceased co-appellant leads to the entire appeal being dismissed if it involves a joint decree that may result in conflicting decisions.
In a partition suit, the suit as a whole does not abate on the death of one of the plaintiffs. The suit as against the deceased plaintiff alone will stand abated, and the suit insofar as the survivin....
A partition decree in favor of a deceased party is a nullity due to lack of proper representation, rendering subsequent appeals not maintainable.
Point of law: Decree in Suit – Abatement of Appeal - In cases where an appellate Court has made an order dispensing with service of notice of appeal upon legal representatives of any person deceased ....
A suit for partition requires substantiating evidence of genealogy and heirs; mere allegations are insufficient. Equal shares were affirmed for the parties, reflecting the law of inheritance. This le....
The main legal point established in the judgment is the principle of abatement under Order 22 Rule 4 of the Civil Procedure Code, leading to inconsistent and inexecutable decrees when legal heirs of ....
The necessity of making all co-owners parties in a partition suit is essential for maintaining the validity of the decree.
In partition suits, substitutions for deceased parties are essential to ensure the continuity of proceedings, as the normal rules of abatement do not apply, allowing courts to exercise discretion to ....
Rejection by the High Court of the applications to set aside abatement, condonation and brining on record the legal representatives does not appear, on the peculiar nature of the case, to be a just o....
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