JAGABANDHU ROUT Vs. RANJAN KUMAR ROUT

JUDGEMENT

(1.) The appellant is the petitioner in this writ petition. He has challenged the order dated 26.04.2012 passed by the Learned Additional District Judge, Kendrapara in R.F.A. No. 45 of 2005 rejecting his application to substitute the legal heirs of the deceased - respondent No. 7.

(2.) On perusal of the impunged order, it appears that the aforesaid appeal was directed against the judgment and decree passed by the Learned Civil Judge, (Senior Division), Kendrapara in T.S. No. 112 of 1993. During pendency of the appeal, respondent No. 7, Rodani Bewa died. The appellant filed application to substitute the legal heirs of the said decease - respondent along with an application under Section-5 of the Limitation Act to condone the delay in filing the substitution application.

(3.) It appears that the respondent died on dated 04.02.2011 and right to sue survives to the legal heirs. The appellant accordingly filed application to substitute the legal heirs only on 30th March, 2012. By the said time, the statutory period to substitute the legal heirs was already over and the order of abatement was passed. The statutory period to set aside the abatement was also over. However, the appellant filed application only under Order-22, Rule-4 of the Code of Civil Procedure in view of Rule-11 of the said Order which stipulates that the order is applicable to the appeal. Therefore, the appellant should have file an application to set aside the abatement along with an application for substitution and an application under Section-5 of the Limitation Act as stipulated under Order-22, Rule-9(3) of the Code of Civil Procedure. The appellate Court rejected the application for substitution as application for setting aside the abatement had not been filed and observed that the appellant is very casual and callous in taking steps for substitution.