BANIJYA LAXMI RAY Vs. MALAYA KUMAR DAS

JUDGEMENT

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

(2.) The Petitioner in this writ petition seeks to assail the order dtd. 25/2/2012 (Annexure-3) passed by learned Civil Judge (Senior Division), Rourkela in C.S. No.215 of 2008, rejecting an application under Order XXII Rule 4(4) CPC.

(3.) It is submitted by Mr. Maharana, learned counsel for the Petitioner that the suit has been filed for specific performance of contract. The suit property originally belonged to Defendant No.1. Defendant No.2 is the Power of Attorney Holder of Defendant No.1. Defendant No.1 through his Power of Attorney Holder, Defendant No.2, executed a sub-lease deed in favour of Defendant No.3, with whom the Plaintiff has entered into an agreement for purchase of the suit property and has paid Rs.2,35,000.00 towards part consideration to purchase the property after obtaining due permission from the Collector, Rourkela. Notice on Defendant No.1 was made sufficient through paper publication. But, he did not appear and was set ex parte. Defendant No.3 although filed his written statement was subsequently set ex parte. At that juncture, the Defendant No.2 filed a memo stating that Defendant Nos.1 and 3 have died. Plaintiff after thorough enquiry could only find out that the Defendant Nos.1 and 3 have died. Since Defendant Nos.1 and 3 have already been set ex parte, an application under Order XXII Rule 4(4) CPC was filed to exempt her from substituting them.