SOVA RAY Vs. GOSTHA GOPAL DEY

JUDGEMENT

(1.) The appellants filed a suit for partition of the properties detailed in the plaint claiming 1/3rd share. A preliminary decree was passed by the trial Court, which was challenged by the defendant No. 9 (original respondent No. 1 in the present appeal) before the Orissa High Court in First Appeal No. 184 of 1972. The appeal was disposed of on compromise whereby the plaintiffs claim to 1/3rd share was accepted as correct. The terms of the compromise are set out in paragraph 2 of the order dated 27-3-79. It was, however, further agreed that half of the share of the plaintiffs, i.e. 1/6th share, would go to the defendant No. 9 provided he paid a sum of Rs. 40,000/- to the plaintiffs by a particular date, failing payment within time, the decree passed by the trial Court would stand confirmed as per terms of the compromise. The compromise was recorded on 27-3-1979. According to the compromise the sum of Rs. 40,000/- was to be paid in two instalments:the first instalment of Rs. 10,000/- by 31-7-1979 and the remaining amount of Rs. 30,000/- by 28-2-1980. The first instalment was paid within time but the remaining amount was not paid. In the meantime, the decree by the High Court was formally drawn up on 6-9-1979. In view of the default in payment of the second instalment the plaintiffs-appellants deposited the sum of Rs. 10,000/- received by them as the first instalment to the credit of the defendant No. 9 with the permission of the Court. The defendant No. 9, thereafter, made an application before the High Court on 28-8-1981 for extension of the period for payment of the second instalment of Rs. 30,000/-. The application was allowed by the, order dated 31-8-1981 which is under challenge in the present appeal.

(2.) Before proceeding to the points involved in the present appeal it will be useful to briefly state the facts. The parties are close relations, the defendant No. 9 (original respondent No. 1) being the uncle of the plaintiffs-appellants. He died during the pendency of the appeal here and his heirs and legal representatives have been substituted as respondents. The father (if the plaintiffs Nityagopal, defendant No. 9(original respondent No. 1) Ghosta Gopal and Brajgopal were brothers. Nityagopal died in 1953 leaving behind the plaintiffs and their mother who also died in 1962. According to their case, they thus became entitled to 1/3rd share in the properties belonging to the family. The appellants were very young girls and lived with Gostha Gopal for some time after the death of their parents. But, according to their case, they had to leave for their maternal grandmother's place in 1964 due to the illtreatment by their uncle. In 1965, a collusive suit for partition was commenced by both the uncles Gostha Gopal and Brajgopal, in which although the plaintiffs were impleaded as parties, their address was wrongly mentioned in the plaint. Consequently no summons could be served on them nor did they have any information about the suit and the decree passed therein. No share was allotted, to the appellants, at all. After they learnt about the collusive suit and the decree, they filed the present suit being T.S. 32 of 1967, for setting aside the earlier decree and for partition. The trial Court accepted the plaintiffs' case that the earlier decree was obtained by fraud. The plaintiffs were awarded 1/3rd share as claimed by them. Brajgopal became reconciled to the situation but Gostha Gopal challenged the decision in the aforementioned First Appeal No. 184 of 1972.

(3.) The parties reached an amicable settlement and the appeal was disposed of on 27-3-1970. Accordingly the heirs of Brajgopal (who was dead by then) got their 1/3rd share in accordance with the trial court's decision and the suit so far as the other two branches, that is, the plaintiffs and Gostha Gopal were concerned, was disposed of on the terms as mentioned in parapraph 1 above. According to the case of the plaintiffs-appellants they had no information of the application dated 28-8-1981, filed by the defendant No. 9 for extension of the period for payment of the second instalment of Rs. 30,000/- and when a copy of the application was offered to their advocate he did not accept the same making an endorsement thereon that notice should be served directly on the plaintiffs as he did not continue to hold any authority on their behalf. Despite this stand of their learned counsel in the High Court, no notice was sent to the plaintiffs and the case was listed only after two days on 31-8-1981. The plaintiffs advocate - although he did not represent them on that date - was present in Court when the case was called out, and pointed out that there was no justification for excusing the long delay. Earlier the Court by its order dated 17-8-1981, after taking into consideration the conduct of the defendant No. 9 in not complying with the terms of the compromise, had permitted the plaintiffs to refund the sum of Rs. 10,000/- paid to them as the first instalment. The plaintiffs' counsel pointed out that the aforesaid order had finally closed the matter. The Court however, allowed the prayer of the defendant and permitted him to pay the remaining money along with an additional sum of Rs. 6,000/- by way of compliance of the terms of the compromise. The counsel who was representing the plaintiffs earlier, refused to accept the money when offered, and the Court permitted the defendant to deposit the amount with the Registrar of the Court observing that the same would be available to be withdrawn by the plaintiffs. When the petitioners learnt about the order they took a copy of the same and approached this Court under Article 136 of the Constitution.