NARAYAN MALIK Vs. SADASHIV MALIK

JUDGEMENT

(1.) Heard learned counsel appearing for the parties.

(2.) Undisputedly, in the pendency of final decree proceeding defendant no.1 dies on 18/6/2011. It appears that in the natural course substitution application is brought in respect of L.Rs. of defendant no.1 by filing appropriate application, which application was taken up for consideration. Order-sheet discloses there was direction for issuance of notice in the matter of substitution vide order dtd. 27/12/2021 available at page-38 and 39 of the brief. It appears, after service of notice on the L.Rs. of defendant no.1 substitution application was ultimately taken up on 6/3/2013 on which date trial court declared L.Rs. 1(a) to 1(h) set ex parte. Further, the matter was taken up on 25/3/2013 and vide this order, there is allowing of the application under Order 21, rule 4 of the Code of Civil Procedure. Taking this Court to the further order-sheet, Mr.Mohanty alleges that the matter was taken up thereafter on several dates and finally by impugned order dtd. 12/1/2017 there is direction to its Office for finalization of preliminary decree on the basis of drawing already prepared in the meantime. In the said order, office was directed to draw the final decree in the suit for preparation of final decree. Mr.Mohangy, learned counsel for the petitioner here alleges that even assuming the L.Rs. of Defendant no.1 did not appear on the basis of notice on substitution, even after declaring the L.Rs. of defendant no.1 ex parte such declaration must confine the substitution application. Since the final decree proceeding was pending, it becomes the duty of the court to give opportunity of hearing to the L.Rs. in final decree proceeding only after issuing fresh notice in the final decree proceeding.

(3.) Mr.Panda, learned counsel appearing for the opposite parties taking this Court to the order-sheet again submits that the issue involving preparation of drawing had already undertaken in the previous exercise by which time the defendant no.1 was already set ex parte. For the further development, the L.Rs. of defendant no.1 declared ex parte by order dtd. 6/3/2013. There was no necessity of further noticing the L.Rs. of defendant no.1. It is in this view of the matter, Mr.Panda, learned counsel objected the entertainability of the Civil Miscellaneous Petition.