IMPORTANT POINT
Act of court should not injure any of suitors.

Dr. A.K.Rath, J.—By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 15.5.1987 passed by the learned District Judge, Puri in Title Appeal No.31/60 of 82/81 whereby and whereunder the learned lower appellate court held that the appeal stands abated on the basis of the report of the process server that the appellants are dead.

2. Biswanath Mohapatra predecessor-in-interest of the opposite parties as plaintiffs laid a suit for declaration of title, confirmation of possession over the suit land and for permanent injunction impleading the mother of the present petitioner and others as defendants in the court of learned Sub-Judge now learned Civil Judge (Senior Division), Puri, which is registered as O.S. No.100 of 1977. Pursuant to issuance of summons, defendants entered appearance and filed written statement denying the assertions made in the plaint. The suit was decreed. Challenging the judgment and decree dated 31.3.1981 and 9.4.1981 passed by the learned trial court, defendants filed an appeal being Title Appeal No.31/60 of 82/81 before the learned District Judge, Puri. On 16.7.1981, the appeal was admitted and notice was issued to the respondents. After hearing the learned counsel for the parties, learned lower appellate court allowed the appeal, set aside the judgment and decree and remanded the matter back to the learned trial court for fresh disposal. Challenging the order of the learned lower appellate court, defendant nos.1 and 1(a) filed an appeal being Misc. Appeal No.351 of 1983 before this Court. This Court allowed the appeal on 26.9.1986 and directed the learned lower appellate court to reconsider the appeal on the basis of the materials available on record with a further direction to the parties to appear before the learned lower appellate court on 17.11.1986. The parties appeared through their counsel on 17.11.1986. While the matter stood thus, a memo had been filed by the advocate for the respondent no.1 that respondent no.1 expired on 18.11.1984. On 16.1.1987, learned counsel for the appellants filed a memo stating that appellant no.1 died and he had no instruction. It was also brought to the notice of the court that respondent no.1 died. Learned trial court issued notice to the appellants and respondents through court fixing 4.2.1987 for appearance. Notices issued to the appellants and respondents received back unserved with report ‘dead’. On 15.5.1987, the matter was taken up. Learned counsel for the appellants submitted a memo stating that he had no instruction in the matter. Since notice sent to the appellants returned back with an endorsement that the appellants are dead and a memo was filed by the learned counsel for the respondents that the appellants are dead, learned lower appellate court basing on the report of the process server as well as memo filed by the learned counsel for the respondents passed the order that the appeal stands abated. While the matter stood thus, an application was filed by the appellants to recall the order dated 15.5.1987, which is registered as Misc. Case No.368 of 1987. It is stated that notices were issued to the appellants for their appearance. The process server submitted a report that both the appellants are dead. On 15.5.1987, learned counsel for the appellants filed a memo stating that he had no instruction in the matter. Learned counsel for the respondents filed a memo stating that the appellants are dead. Basing on the same, the appeal was disposed of as abated. It is further stated that the appellant no.1-Nilamani Dibya died on 9.12.1985 leaving behind no legal heir and successor. The right to sue survives on the other appellant-Champa Dibya. The process server report reveals that Champa Dibya died is wrong. With the factual scenario, this petition has been filed. By order dated 21.8.1999, learned lower appellate court dismissed the misc. case.

3. Heard Mr. Soumya Mishra on behalf of Mr. S.P. Mishra