JITENDRA BALLAV BURDHAN Vs. DHIRENDRANATH BURDHAN

JUDGEMENT

(1.) This Civil Revision has been directed against a composite order passed by the CivilJudge (S.D.), 1st Court, Cuttack dated 16-2-2002 in Misc. Case Nos. 124 of 2000 and 138 of 2000 arising out of Execution Case No. 59 of 1995, which were heard analogously.

(2.) The facts leading to this application are that the petitioner was the plaintiff In Title Suit No. 11 of 1984 and filed the suit for partition claiming l/5th share In the suit property. The suit was contested and decreed declaring I/5th share of the plaintiff by a preliminary decree dated 9-10-1990. The said decree was challenged In First Appeal No. 106 of 1996, which was ultimately withdrawn as per the order of this Court dated 26-7-1997. The final decree proceeding was initiated and the decree was made final on 29-1-1996.

(3.) The further fact is that during the final decree proceeding due to the death of defendant No. 4, an application for substitution was filed in the said final decree proceeding on 7-1-1994 with a prayer to substitute the legal heirs of the deceased defendant No. 4. Notices were issued to the proposed legal heirs of deceased defendant No. 4 and the service of the notice on the proposed legal heirs was held to be sufficient. Thereafter, though the final decree was proceeded and the final order was passed on 29-1-1996 no order either way on the prayer for substitution of the legal heirs of the deceased defendant No. 4 was passed. It is pertinent to mention here that defendant No. 4 did not contest the suit and l/5th share was granted in favour of defendant Nos. 1 to 5 jointly as the said defendants hailed from a common ancestor, namely Jagat Ballav. The order dated 23-3-1996 passed in the final decree proceeding would show that all the defendants were set ex parte, and a joint share was given, i.e., I/ 5th share, in favour of defendants 1 to 5 as per Commissioner's report which was ordered to be made a part of final decree.