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IN THE HIGH COURT OF ORISSA AT CUTTACK
A.C.BEHERA
Kausalya Singh – Appellant
Versus
Srinath Ch. Sahu (Dead) – Respondent
| Table of Content |
|---|
| 1. introduction of the case and parties involved. (Para 1 , 2 , 3) |
| 2. factual background of the final decree proceeding. (Para 4) |
| 3. challenge by the defendants on grounds of law. (Para 5) |
| 4. court's review of the previous orders and factual findings. (Para 6 , 7) |
| 5. clarification of law regarding substitution of legal heirs. (Para 8 , 9 , 10) |
| 6. conclusion and order setting aside previous judgments. (Para 11 , 12) |
JUDGMENT :
A.C. BEHERA, J.
1. This Second Appeal has been preferred against the confirming judgment.
2. The appellants of this Second Appeal were the defendants before the Trial Court in the suit vide O.S. No.22 of 1966-II and they were the appellants in the First Appeal vide M.A. No.23 of 1984-I.
The respondents of this Second Appeal were the plaintiffs before the Trial Court in the suit vide O.S. No.22 of 1966-II and they were the respondents in the First Appeal vide M.A. No.23 of 1984-I.
3. The suit of the plaintiffs (those are the respondents in this Second Appeal) vide O.S. No.22 of 1966-II before the Trial Court was a suit for passing of a mortgage decree.
4. The factual backgrounds of this Second Appeal as per the materials on record are that, after passing of
Substitution of legal heirs is mandatory in final decree proceedings when interests are at stake; non-compliance results in abatement of proceedings.
A decree passed against a deceased party is null and void; proper procedure under Order 22 CPC must be followed to avoid automatic abatement.
Legal representatives of deceased parties can seek substitution; amendments to pleadings are permitted to promote effective adjudication and safeguard substantive rights over rigid procedural complia....
The main legal point established in the judgment is the court's power to treat an application under Order 22 Rule 4 of CPC as an application under Order 1 Rule 10 of CPC, allowing for the substitutio....
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.
The court confirmed that the final decree in partition suits must align with amended preliminary decrees, and decisions from probate cases are binding as res judicata, precluding re-litigation.
Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-2) was not repeated all over again, it cannot be held that the appellant/ plaintiff could be non-suited on this ground.
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