SAMIR NANDI Vs. GOVINDA CHANDRA BEHERA

JUDGEMENT

(1.) This matter is taken up through hybrid mode.

(2.) Order dtd. 20/7/2023 (Annexure-5) passed by learned Additional Senior Civil Judge, Sambalpur in Civil Suit No.50 of 2021 is under challenge in this CMP, whereby dismissing an application under Order XXII Rule 4 CPC for substitution of Defendant No.1, learned trial Court held the suit as abated against him.

(3.) It is submitted by learned counsel for the Petitioner that the Defendant No.2 is the Petitioner in this CMP. The suit was filed by the Plaintiff-Opposite Party for declaring the sale deed executed in favour of the Defendants as invalid and for permanent injunction. The suit was filed in the year 2021, but much prior to that date, Defendant No.1 had died on 23/10/2004. However a misconceived application was filed by the Plaintiff-Opposite Party under Order XXII Rule 4 CPC along with allied applications for substitution of deceased-Defendant No.1. Since the suit was initiated against a dead person, learned trial Court rightly dismissed the said application holding it to be misconceived. While dismissing the application under Order XXII Rule 4 CPC, learned trial Court held that the suit should have been treated to be abated against Defendant No.1for all the purpose.