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IN THE HIGH COURT OF ORISSA AT CUTTACK

FAO No.82 of 2015

Smt. Yashodhara Das

….

Appellant

Mr. Maheswar Mohanty, Advocate

-versus-

Sri Rabinarayan Das and others

….

Respondents

Ms. Zenish Wallace, Advocate on behalf of Mr. S. Lal, for

Respondent Nos.1 to 4

Mr. Karunakar Das, A.S.C. for Respondent No.5

CORAM:

JUSTICE B. P. ROUTRAY

ORDER

19.10.2022

Order No.

05.

1. Heard Mr. Maheswar Mohanty, learned counsel for the

Appellant, Ms. Zenish Wallace, on behalf of Mr. S. Lal, learned

counsel for Respondent Nos.1 to 4 and Mr. Karunakar Das,

learned Additional Standing Counsel for State-Respondent No.5.

2. Though the appeal was listed <For Orders=, but with consent of

the parties, the same is taken up for hearing.

3. Mr. Mohanty, learned counsel for the Appellant submits that

during pendency of the appeal, Respondent No.1 died and all his

LRs being on record, no further substitution is required. Ms.

Wallace, learned counsel for the Respondent Nos.1 to 4 agrees

with his submission. Accordingly, the name of Respondent No.1

is deleted.

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4. Before coming to the merits of the appeal, Mr.Mohanty,

submits to confine his challenge in respect of Annexure-6 only

and states that the challenge in respect of Annexure-3 is not

pressed. As such, the appeal is confined in respect of Annexure-6

only.

5. It is seen that in Probate Misc. Case No.10 of 2011, present

Appellant, namely, Smt. Yashodhara Das is the applicant. The

order was passed in her favour by the probate court, i.e. District

Judge, Balasore. Subsequently, present Respondents came up

with Revocation Misc. Case No.164 of 2011 praying to revoke

the order passed in the probate case in favour of the Appellant on

the ground of suppression of facts and that, they were not

impleaded as parties. In the revocation case, a petition under

Order 39 Rules 1 and 2, C.P.C. was filed. Learned Probate Court

passed an interim order in favour of the present Respondents with

a direction not to alienate the properties during pendency of the

revocation case. Subsequently thereafter, present Appellant, who

was the Respondent in the Revocation Misc. Case, filed a petition

under Order 39 Rule 4, C.P.C. for variation of such interim order.

This was rejected by the learned District Judge, Balasore.

6. While rejecting the prayer under Order 39 Rule 4, learned

District Judge, Balasore held that the interim order was passed for

preserving the property in dispute pending decision in the

revocation case. The relevant operative portion of the order of the

learned District Judge, Balasore is reproduced below.

<Although it appears that there has not been any

compliance of Rule 3-A of C.P.C. but it is seen

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that the O.P. No.1 remained silent for more than

two years on the matter and has filed this

application when the case is on the verge of being

disposed of. So, from the petition of the O.P. No.1

no change in circumstances is noticed. The ex

parte injunction order has been passed preventing

alienation out of the Lot No.1 schedule property.

So, the order is not one restraining the O.P. from

the said property. So, I am of the view that the

order has been passed for preserving the property

in dispute. So, I find no reason now to vacate the

order in question. Hence, the petition is rejected.=

7. On such conspectus of facts as stated above, the main

consideration of learned District Judge, Balasore to refuse the

prayer of the Appellant is that, if the property would be alienated

in the meantime, the purpose of Revocation Misc. Case would be

frustrated. It is true that the order passed in probate case is in

favour of the Appellant giving enjoyment of right over the

property in question including right to alienate also. The interim

order passed is to restrain the Appellant from aliena