SURENDRANATH BARAL Vs. BISHNUPRIYA PANDA AND ORS.

JUDGEMENT

(1.) This Civil Miscellaneous petition is filed under Article 227 of the Constitution of India assailing the order dated 11.4.2014 passed by the Additional Civil Judge (Senior Division), Puri in C.M.A.No.09 of 2012 thereby rejecting an application under Order 22, Rule 4 read with under Order 6, Rule 17 of the Civil Procedure Code basically bringing the legal representatives of the deceased defendants in the pending application under Order 9, Rule 13 of the Civil Procedure Code for setting aside the exparte decree.

(2.) Short facts involved in the case is that on obtaining an exparte decree, the plaintiff-Opp.party No.1 filed an application to draw the Final Decree on the basis of the preliminary decree passed in the suit. During pendency of the Final Decree proceeding, the plaintiff-Opp.party No.1 had brought an application for substitution on 13.3.2013.Having come to know about the death of such parties, the present petitioner filed an application for substitution in the pending proceeding under Order 9,Rule 13 of the Civil Procedure Code for setting aside the exparte decree. It is alleged that even though the substitution application at the instance of the Opp.party No.1 was allowed in the Final Decree proceeding but the application for substitution at the instance of the present petitioner in the restoration proceeding under Order 9,Rule 13 of the Civil Procedure Code has been rejected. Being aggrieved by the said order of rejection, the petitioner preferred this Civil Miscellaneous petition. On challenging the said order, Mr.S.K. Dash, learned counsel appearing for the petitioner submitted that there has been mechanical consideration of the application for substitution by the lower Court in as much as the lower Court has failed to appreciate the provisions contained in Order 22,Rule 4(3) and Order 22,Rule 11 of the Civil Procedure Code as well as the provisions contained in Articles 120,121 and 137 of the Limitation Act. Strongly relying on the provisions noted herein above, Mr.Dash, learned counsel for the petitioner submitted that in view of the provisions contained therein, there was no requirement of attracting the provisions of Order 22, Rule 4(3) of the Civil Procedure Code or Section 5 of the Limitation Act in as much as since the application for substitution was filed in a proceedintg under Order 9, Rule 13 of the Civil Procedure Code which is neither a suit nor an appeal. Provision of Order 22,CPC is not attracted and the Court should not have been persuaded by mere nomenclature of the petition. Referring to a decision in the case of Smt. S.Begum & another vrs. A.Hossain and others, 1980 AIR(MP) 12, Sri Dash, learned counsel for the petitioner claimed that the impugned order is contra to the provisions of the Civil Procedure Code and law. Sri Dash, learned counsel further contended that since similar application at the instance of Opp.party No.1 was allowed by the very same Court in a Final Decree proceeding, the lower Court rejecting the application at the instance of the present petitioner in the proceeding under Order 9, Rule 13 of the Civil Procedure Code, amounts to application of two standards in similar situation.

(3.) In opposition, Mr.Goutam Mukherjee, learned counsel for the Opp. parties submitted that in view of the specific provision as contained in Order 22,Rule 4(3) of the Civil Procedure Code since the substitution sought for beyond the period of 90 days, the application for substitution in absence of an application for setting aside abatement and condonation of delay perse was not maintainable and in absence of such application, the petition under Order 22, Rule 4 of the Civil Procedure Code was not maintainable and therefore the lower Court did no wrong in rejecting the application under Order 22,Rule 4 of the Civil Procedure Code at the instance of the present petitioner, leaving no scope for this Court to interfere in the said order passed by the lower Court. Mr.Mukherjee, learned counsel for the Opp.parties relying on a decision in the case between M.K.Prasad -vrs- P.Arumugam, 2001 AIR(SC) 2497 submitted that in view of the decision of the Hon'ble Apex Court,the impugned order is justified.