The court emphasized that substantiated evidence is required to condone delay and set aside abatement; mere presumptions based on social inequalities are inadequate.

JUDGMENT :

KRUSHNA RAM MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. Order dated 5^th March, 2012 (Annexure-1) passed by learned Civil Judge (Senior Division), Puri in C.M.A. No.311 of 2011 is under challenge in this writ petition, whereby applications for condonation of delay, setting aside abatement of C.M.A. No.311 of 2011 and substitution of the applicant therein, namely, late Nityananda Jadab, have been allowed.

3. Mr. Mohanty, learned counsel for the Petitioner submits that Title Suit No.167 of 1998 was filed by the Petitioner against said Nityananda Jadab for specific performance of contract. The suit was decreed ex-parte on 29^th March, 2003. Thereafter, the Petitioner filed Execution Case No.24/1 of 2010/2003 for execution of the decree. During pendency of the Execution Case, said Nityananda Jadab filed C.M.A. No.04 of 2004 (renumbered as CMA No. 311 of 2011) under Order IX Rule 13 CPC to set aside the ex-parte decree. During pendency of said C.M.A., Nityananda Jadab died. Since no step was taken either for substitution or to pursue the petition under Order IX Rule 13 , the same was dismissed as abated. However, the Petitioner filed a petition for substitution in the Execution Case No.24/1 of 2010/2003 to substitute the widow of said Nityananda Jadab, namely, Santilata Dei as party to the Execution Case. After substitution, notices in the Execution Case were issued to said Santilata Dei. Subsequently, substituted notice under Order V Rule 20 was taken by publication in the newspaper ‘Dharitri’. Thereafter, the Execution Case proceeded treating the notice on substituted LR to be sufficient and the sale deed was executed on 2^nd August, 2011 through Court. When the matter stood thus, the Opposite Parties filed petitions for substitution of said late Nityananda Jadab, setting aside abatement of the CMA No.04 of 2004 and for condonation of delay in filing the petition for substitution. Those applications being allowed vide order under Annexure-1, this writ petition has been filed assailing the same.

4. It is submitted that the only ground taken in the petitions for setting aside the abatement and condonation of delay was that the Opposite Parties were unaware of the petition filed under Order IX Rule 13 CPC . When the Petitioner went to the suit land to take delivery of possession pursuant to execution of the sale deed, they came to know about the same and filed the aforesaid petitions. It is further submitted that learned trial Court made a peculiar observation to allow the applications, which is unknown to law. It is observed in the impugned order that there are several materials on record to show that the Opposite Parties (Petitioners therein) belong to weaker section of the society and members of conservative family, who had no opportunity to come across the news published in the newspaper. It is also observed that in a conservative family, the male dominates the females and females are passive supporter of such dominancy. The women are hardly getting a scope to know the litigations fought in the Court. It is his submission that such observations are unknown to law. When notice in the Execution Proceeding under Order V Rule 20 was published in the newspaper, it is presumed to have been served on the Opposite Party No.1. Further, there is no material to dislodge the presumption of law of sufficiency of notice. A bald statement to the effect that they had no knowledge about the petition filed under Order IX Rule 13 is not sufficient to condone the delay of more than four years in filing the petition for substitution, setting aside abatement and condonation of delay. Since