Location: High Court of Orissa, Cuttack

Date: 10-Nov-2025 11:06:52

IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.634 of 2025

(In the matter of an application under Article 227 of the Constitution of

India)

Malati Lata Mallick and others …. Petitioners

-versus-

Srikanta Mallick and others …. Opposite Parties

Advocate(s) appeared in this case:-

For Petitioners : Mr. N.K. Sahu, Advocate

For Opposite Parties : Mr. S.S.K. Nayak, Advocate

For O.P. No.2

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

7^th November 2025

B.P. Routray, J.

1. Heard Mr. N.K. Sahu, learned counsel for the Petitioners and

Mr. S.S.K. Nayak, learned counsel for Opposite Party No.2.

2. Present C.M.P. is directed against the order dated 13.09.2024 and 30.09.2024 passed in Final Decree Proceeding in T.S. No.104 of

1967.

3. Initially the suit for partition was decreed preliminarily on 29.11.1969 determining the share between the parties. Then a final

Location: High Court of Orissa, Cuttack Date: 10-Nov-2025 11:06:52 decree proceeding was initiated in the year 1978 which was rejected vide order dated 05.05.1978 on the ground that some properties beyond the decretal properties were added. Thereafter another final decree proceeding was initiated on 09.04.2018 by present Opposite Party No.1 and an amendment petition was filed on 15.02.2024. Present Petitioners in the CMP, who are the successors of the original Defendants, submitted their objection with regard to status of the Petitioners in the final decree proceeding to initiate the same on the ground that present final decree Petitioner, namely, Srikant Mallick is no-way connected to the original Plaintiff in the suit. Further, according to the successors of Defendants, said Srikant Mallick is not the legal heir of the original Plaintiff and he does not bear any status as “Snehaputra” of Bairagi Mallick (the original Plaintiff) to be the successor to claim share in the suit properties in terms of the preliminary decree. They have filed their objection in writing.

4. But the learned Civil Judge without considering any such objection raised on behalf of the successors of the Defendants, in his order dated 13.09.2024 allowed the final decree petition filed by said Srikant Mallick with one line order that the petition is allowed. Subsequently, the prayer of the successors of the Defendants to recall Location: High Court of Orissa, Cuttack Date: 10-Nov-2025 11:06:52 said order dated 13.09.2024 is also rejected vide order dated 30.09.2024. As such, both the orders have challenged in the present C.M.P.

5. The impugned order dated 13.09.2024 of the learned trial court stating that the final decree petition is allowed is seen to be a cryptic one without maintaining such procedural formalities in the final decree proceeding. It is to be reminded here that final decree proceeding is the continuation of the suit and has to be dealt with the procedure envisaged in the C.P.C. It is also settled that the events happened subsequent to the preliminary decree has to be considered in the final decree proceeding and if any further dispute is there, the same has to be settled.

6. In Debendra Jena and others vs. Umakanta Jena and others, AIR 1988 ORISSA 11, it is observed as follows:-

“xxx xxx xxx It, therefore, appears to be the settled position of law that the final decree proceeding is a stage in continuation of the suit for partition. The partition suit should be deemed to be pending until a final decree is passed. The preliminary decree declares and determines the shares of parties, but all other equities which requires determination and adjustment amongst them are to be decided in the final decree Location: High Court of Orissa, Cuttack Date: 10-Nov-2025 11:06:52 proceeding with the objective of not driving the parties to institute separate suits. Events which have happened subsequent to the passing of the preliminary decree can also be taken into consideration and decided at the stage of the final decree proceeding. If rights of parties are decided during the fin