ORISSA HIGH COURT : CUTTACK C.R.P. No.7 of 2021 An application under Section 115 of the Code of Civil Procedure, 1908.

***

Ananda Naik (Since Dead) through his LRS … Petitioners -VERSUS-

Pramila Majhi & Others … Opposite Parties Counsel appeared for the parties:

For the Petitioners : Mr. Gopinath Mishra, Adv.

For the Opposite Parties : Mr. Maheswar Mohanty, Adv.

P R E S E N T:

HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing: 01.07.2025 :: Date of Judgment : 25.07.2025 ANANDA CHANDRA BEHERA, J.

1. This revision under Section 115 of the C.P.C, 1908 has been filed by the petitioner praying for setting aside the final order dated 07.04.2021 passed in FAO No.11 of 2020 by the learned District Judge, Malkangiri.

2. After the death of the Petitioner during the pendency of this revision, his LRs have been substituted in his place as Petitioner Nos.1(a) to 1(f).

The Opposite Party No.1 in this revision was the Appellant in FAO No.11 of 2020.

The Opposite Party Nos.2 to 5 in this revision were the Respondent Nos.2 to 5 in that FAO No.11 of 2020.

3. FAO No.11 of 2020 was preferred by the Opposite Party No.1 of this revision challenging the final order dated 22.10.2020 passed in CMA No.1 of 2019 under Order-9 Rule-13 of the C.P.C.1908 arising out of C.S. No.71 of 2018.

4. The factual backgrounds of this revision, which prompted the Petitioner for filing of the same is that, he (Petitioner, Ananda Naik) being the sole plaintiff filed the suit vide C.S. No.71 of 2018 in the Court of learned Civil Judge (Senior Division), Malkangiri against the Opposite Party No.1 in this revision i.e. Pramila Majhi arraying her as Defendant No.1 and also arraying Defendant Nos.2 to 5 as other Defendants.

That suit vide C.S. No.71 of 2018 filed by Ananda Naik was decreed ex-parte on dated 25.09.2018 against all the defendants including the Defendant No.1 Pramila Majhi.

After passing of such ex-parte decree in the suit vide C.S.

No.71 of 2018 against the defendants, the Defendant No.1 Pramila Majhi filed CMA No.1 of 2019 under Order-9, Rule-13 of the C.P.C. being the Petitioner against the Plaintiff Ananda Naik arraying him as Opposite Party No.l and also arraying the Defendant Nos.2 to 5 as Opposite Party Nos.2 to 5 praying for setting aside the ex-parte decree dated 25.09.2018 passed in C.S. No.71 of 2018 on the ground that, notice of the suit vide C.S. No.71 of 2018 was not duly served upon her and she was set ex-

parte illegally without being served with proper notice.

After hearing from both the sides, the learned Civil Judge (Senior Division), Malkangiri rejected/ dismissed that CMA No. 1 of 2019 of the Petitioner (Defendant No.1) on dated 22.10.2020 assigning the reasons that, after due service of notice in the suit vide C.S. No.71 of 2018 upon her (Defendant No.1), she (Defendant No.1) had deliberately and intentionally avoided to participate in the hearing of the suit vide C.S No.71 of 2018 having her full knowledge about the pendency of that suit vide C.S No.71 of 2018 against her.

5. On being dissatisfied with the above order i.e. rejection/dismissal to her CMA No.1 of 2019 under Order-9 Rule- 13 of the C.P.C.1908 passed by the learned Civil Judge (Senior Division), Malkangiri, she (Pramila Majhi) challenged the same preferring an appeal vide FAO No.11 of 2020 under Order-43 Rule-1(d) of the C.P.C being the Appellant against the Plaintiff Ananda Naik arraying him as Respondent No.1 and also arraying the Defendant Nos.2 to 5 as Respondent Nos.2 to 5.

6. After hearing from both the sides, the learned District Judge, Malkangiri allowed that FAO No.11 of 2020 on dated 07.04.2021 filed by the Defendant No.1 (Pramila Majhi) on contest and set aside the order of rejection/dismissal to her CMA No.1 of 2019 passed by the learned Civil Judge (Senior Division), Malkangiri and also set aside to the ex-parte judgment and decree dated 25.09.2018 passed in C.S. No.71 of 2018 against her (Pramila Majhi) by the learned Civil Judge (Senior Division), Malkangiri assigning