NIRANJAN BEHERA Vs. SUDARSAN BANDHA

JUDGEMENT

(1.) This appeal is against order dated 6.01.2009 passed by learned Civil Judge (Senior Division), Bhadrak in Misc. Case No.101 of 1998 a proceeding under Order 9 Rule 13 C.P.C., arising out of O.S. No.327 of 1996 rejecting the appellant s prayer for substitution.

(2.) The appellant herein is defendant No.17 in the suit and the petitioner in the proceeding under Order 9 Rule 13 C.P.C. The suit is for partition of the suit property and for permanent injunction with other consequential reliefs. The suit was fixed to 18.02.1998 for filing of written statement by the appellant. Since the appellant fell ill he could not file written statement on the date fixed. Though a petition for time was filed on his behalf it was rejected and he was set exparte. Taking advantage of the appellants absence in the suit, it is alleged, the plaintiff and defendant Nos.1 and 2, in collusion with defendant Nos.11(ka), 19, and 20, entered into a compromise to the prejudice of the appellants interest and got the suit disposed of in a Lok Adalat held on 22.03.1998 in terms of their compromise. On 9.4.1998 the appellant filed petition under Order 9 Rule 13 C.P.C. to set-aside the exparte decree passed against him. During pendency of his petition under Order 9 Rule 13 C.P.C. defendant-opposite party No.20 Suka Bewa died on 25.11.2005. On 24.09.2008 the appellant filed an application for substitution of legal heirs of the deceased defendant along with one application under Section 5 of the Limitation Act to condone the delay. Learned trial Court rejected the prayer for substitution vide the impugned order solely on the ground that no application for setting aside abatement was filed.

(3.) Impugned order is challenged on the ground that since the appellant had filed the application for substitution stating therein the cause of delay. Learned lower Court ought to have set-aside the abatement even though no separate petition for setting aside abatement was filed.