SUKANTA CHANDRA SAHOO Vs. JAYAKRISHNA ROUTRAY

JUDGEMENT

(1.) This revision is directed against the order dated 13-5-1982 of the District Judge, Cuttack, rejecting the petitioner's application to be brought on record.

(2.) One Bai Bewa filed Title Suit No. 201 of 1976 in the court of the Munsif, First Court, against Jayakrishna Routray for cancellation of two sale deeds which were alleged to have been taken by Jayakrishna from her exercising fraud and misrepresentation. The suit was decreed by the learned Munsif and the two sale deed were declared as null and void. On 15-9-1978 Javakrishna preferred an appeal against the judgment and decree of the learned Munsif which was numbered as Title Appeal No. 106 of 1978. The appeal was dismissed for default and an application for restoration of the appeal was filed which was numbered as Miscellaneous Case No. 72 of 1981. During the pendency of the miscellaneous case in the court of the District Judge, Cuttack. Bai Bewa died on 19-11-1981. After the death of Bai, in affidavit was filed by the clerk of the Advocate who was representing Bai in the court of the District Judge intimating the death of Bai and also the fact that Bai left Sukanta (the present petitioner) as her heir being the adopted son. But notwithstanding the said intimation. Jayakrishna, the appellant in the title appeal and also the petitioner in the miscellaneous case, filed an application for substitution of Bai through her daughter one Dukhi Bewa and the prayer for substitution was allowed. The miscellaneous case was also allowed and the title appeal was restored to file. Thereafter, the present petitioner coming to know about this filed an application before the learned District Judge purporting to be one under Order 1. Rule 10 of the Civil P. C. alleging that he was the adopted son of deceased Bai Bewa and was, therefore, entitled to continue the proceedings and should be impleaded as a party to the appeal. It was also stated in the said petition that between the parties some proceedings were continuing under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act and in those proceedings the petitioner had been substituted in place of his adoptive mother deceased Bai Bewa and the appellant Jayakrushna being fully aware of the same intentionally did not substitute him in the appeal. In support of his assertion of adoption, it was indicated that Bai Bewa had executed a deed acknowledging adoption some time on 29-8-1980. This application of the petitioner was seriously objected to by Jayakrushna and the learned District Judge by the impugned order rejected the application filed by the petitioner.

(3.) The learned District Judge was of the opinion that an application for substitution under p. 22 of the Civil P. C. was not maintainable beyond the period prescribed under the Limitation Act and since the application was filed beyond the said period, the same was not entertainable. He was also of the opinion that since the appellant did not choose to substitute the petitioner and the petitioner was not a party to the suit, it would not be open, for him to raise any objection. He also considered the question as to whether the application could be allowed under Order 1, Rule 10 of the Civil P. C. and after discussing the provisions of the Code, came to the conclusion that in the context of deciding whether the sale deed executed by deceased respondent was a fraudulent transaction or not and, therefore, not binding on the deceased, the presence of the petitioner was not necessary for effective and complete adjudication. The learned District Judge was of the opinion that by allowing the petitioner to be impleaded as a party would alter the nature and character of the suit since the alleged adoption of the petitioner by deceased Bai would have to be decided upon.