BADANI PARIDA Vs. MAHANGA PARIDA

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree dated 20.2.1999 and 1.3.1999 passed by the learned IInd Additional Civil Judge (Senior Division), Cuttack in T.S. No.527 of 1992.

(2.) RESPONDENT No.1 is the plaintiff in the suit. The original appellant, namely, Kunja Parida, who is the brother of plaintiff- respondent No.1 is the defendant No.1 and Respondent Nos.2 to 6 are the defendant Nos.2 to 6 in the suit. Respondent No.1 filed the suit for setting aside Registered Sale Deeds bearing Nos.4660 and 4661 dated 8.11.1989 in favour of Respondent Nos.2 to 4 alleging that the latters, in collusion with the deceased-appellant, had managed to obtain the former's signatures on the Sale Deeds in respect of plaint schedule 'B' property by application of fraud and misrepresentation. Schedule 'A' property is the entire suit property consisting of one plot measuring Ac.0.385 decimals in area. Schedule 'B' property is a part of Schedule 'A' property in respect of which the impugned sale deeds have been executed. Claiming schedule 'A' property to be the joint family homestead of herself and the deceased appellant, each having 8 annas share therein, Respondent No.1 made an additional prayer for partition of the property. Despite of due service of summons, the deceased appellant, so also respondent Nos.5 and 6, did not appear before the learned court below to take part in the proceeding of the suit. Respondent Nos.2, 3 and 4 appeared and filed a joint written statement denying the alleged fraud and misrepresentation and claiming that the plaintiff-respondent No.1 and the deceased appellant had jointly executed the two Registered Sale Deeds on their own free will and that the same were acted upon.

(3.) SINCE the suit was decreed ex parte against the original appellant, he filed a petition under Order 9 Rule 13 C.P.C. which was registered as CMAPL No.89 of 2003 to set aside the ex parte decree which was heard and dismissed by the learned trial court. Hence the present appeal under Order 41 Rule 1 read with Section 96 of the C.P.C.