ORISSA HIGH COURT : CUTTACK

WP(C) No.19732 of 2013

An application under Articles 226 & 227 of the Constitution of

India. ***

Smt. Rukmani Nayak & Another

… Petitioners.

-VERSUS-

Pradip Kumar Nayak & Others

… Opposite Parties

Counsel appeared for the parties:

For the Petitioners : Mr. D.P. Mohanty, Advocate

For the Opposite Parties : None. (for Opp. Party Nos.1 to 4)

P R E S E N T: HONOURABLE

MR. JUSTICE ANANDA CHANDRA BEHERA

Date of Hearing : 02.12.2025 :: Date of Judgment :23.12.2025

JUDGMENT

ANANDA CHANDRA BEHERA, J.

1. This writ petition under Articles 226 & 227 of the Constitution of India, 1950 has been filed by the petitioners (appellants before the 1^st Appellate Court in R.F.A. No.34/2006 arising out of C.S. No.900 of 2006) against the Opp. Parties (respondents in R.F.A. No.34/2006 arising out of C.S. No.900 of 2006) praying for quashing (setting aside) the impugned order dated 01.08.2013 (Annexure-3) passed in R.F.A. No.34/2006.

2. The factual backgrounds of this writ petition which prompted the petitioners for filing of the same is that, the petitioners being the appellants filed R.F.A. No.34/2006 challenging the compromise decree passed on dated 06.01.1977 in T.S. No.66 of 1976 by the learned Sub-Ordinate Judge, Balasore on the ground of fraud and misrepresentation.

The Petitioner No.1 in this writ petition was the defendant No.3 in the suit vide C.S. No.900 of 2006.

During the pendency of that R.F.A. No.34/2006 in the Court of learned Addl. District Judge-cum-Special Judge, (Vigilance), Balasore, the appellants filed a petition on dated 27.06.2013 under Order 41, Rule 27 read with Order 26, Rule 10A of the CPC, 1908 praying for a direction to conduct a scientific investigation in respect of the signatures of the appellant No.1 in R.F.A. No.34 of 2006 (defendant No.3 in the suit vide C.S. No.900 of 2006) in the so-called compromise petition in the suit vide T.S. No.66/1976 in order to ascertain the genuineness thereof comparing the same with admitted signatures alleging that, the signatures on the compromise petition dated 06.01.1977 in T.S. No.66/1976 appears as the signatures of Rukmani Bewa @ Naik are forged signatures and prayed for consideration of the said petition dated 27.06.2013 first before hearing of the appeal vide R.F.A. No.34/2006. To which, the respondents in the R.F.A. No.34/2006 objected.

After hearing from both the sides, the learned Addl.

District Judge-cum-Special Judge, (Vigilance), Balasore passed the impugned order on dated 01.08.2013 (Annexure-3)

in that R.F.A. No.34 of 2006 assigning the reasons that, “the petition dated 27.06.2013 (Annexure-2) filed by the appellants under Order 41, Rule 27 read with Order 26, Rule 10A of the CPC, 1908 would be considered during the final hearing of the appeal clarifying that, the parties may reiterate their stands in respect of the said petition under Order 41, Rule 27 of the CPC during the hearing of the appeal on merit.”

3. On being dissatisfied with the above impugned order dated 01.08.2013 (Annexure-3) passed in R.F.A. No.34/2006 by the Addl. District Judge-cum-Special Judge, (Vigilance), Balasore, the appellants challenged the same by filing this writ petition being the petitioners against the respondents of that R.F.A. arraying them as Opp. Parties praying for quashing (setting aside) the order dated 01.08.2013 passed in R.F.A. No.34/2006 by the Addl. District Judge-cum-Special Judge, (Vigilance), Balasore.

4. I have already heard from the learned counsel for the petitioners only, as none appeared from the side of the Opp.

Parties.

5. The law relating to the stage of consideration of a petition under Order 41, Rule 27 of the CPC, 1908 in an appeal has already been clarified in the ratio of the following decisions:

I. In a case between Nandam Rama Rao Vs Battu Rama Rao reported in LawMirror.com File Number 33282 that, application under 0.41.R.27 of the CPC for additional evidence should be decided along with appeal and the same cannot be taken up independently without taking up