KRUSHNA CH. PATI Vs. BASANTA PANIGRAHI AND ORS.

JUDGEMENT

(1.) The instant petition under Article 227 of the Constitution of India is to quash the order dated 25.1.2006 passed by the learned Civil Judge (Sr.Division), Bhadrak in T.S.No.253 of 1991, whereby and whereunder, the learned trial court rejected the application of the petitioner dated 4.1.2006 to recall the order dated 6.12.2005. By order dated 6.12.2005, the learned trial court directed to hold an inquiry under Order 22 Rule 5 C.P.C. to determine the right of opposite party no.1.

(2.) The petitioner as plaintiff instituted a suit for partition impleading his brothers as defendants 1 and 2 and the purchasers of the suit property as defendants 3 to 50 in the court of the learned Civil Judge (Sr.Division), Bhadrak, which is registered as T.S.No.253 of 1991. All the defendants, except defendant no.41-opposite party no.1 herein, have been set ex parte. During pendency of the suit, defendant no.1 died on 23.7.1997. Defendant no.41 claiming to be the adopted daughter of defendant no.1 filed an application for substitution in place of defendant no.1 on 28.1.1998. By order dated 6.12.2005, the learned trial court directed to hold an inquiry under Order 22 Rule 5 C.P.C to determine the right of defendant no.41 for being substituted in place of deceaseddefendant no.1. Since the plaintiff disputed the claim of adoption, an application was filed to recall the order dated 6.12.2005 stating therein that an inquiry on the question of adoption will be lengthy and time consuming process. Thus, it is appropriate to take on record the plea taken by the defendant no.41, objection filed by the plaintiff, frame an issue and decide the suit. The same was rejected by the learned trial court on 25.1.2006, which is impugned in this petition.

(3.) Heard Mr.D.P.Mohanty, learned counsel for the petitioner and Mr.M.Mohanty, learned counsel for the opposite party no.1.