DURYODHAN SAHU Vs. DURYODHAN SAHUHOME DEPARTMENT OF ORISSA

JUDGEMENT

(1.) Instant Appeal under Order 43 Rule1(u) of the Code of Civil Procedure, 1908 is preferred by the appellants challenging the impugned judgment in Title Appeal No.44 of 2003 of the learned Additional District Judge, Bhadrak, whereby, the judgment and decree in T.S. No.273 of 1990-I was set aside followed by a remand for disposal of the suit afresh and in accordance with law by impleading respondent No.1 as one of the defendants therein on the grounds inter alia that the same is untenable in law and therefore, liable to be set aside.

(2.) The schedule property is morefully described under Schedule-A of the plaint in T.S. No.273 of 1990-I. According to the appellants, the suit was instituted in the court of learned Sub-Judge, Bhadrak impleading respondent Nos.2 to 5 as defendants praying therein for a declaration that the entry made in the M.S. RoR in respect of 'Ka' schedule land to be incorrect and illegal and to effect partition by allotting property under 'Kha' schedule in their favour, failing which, to accomplish it by process of the Court deputing a the Civil Court Commissioner, for the said purpose. The suit in T.S. No.273 of 1990-I was disposed of and decreed preliminarily on contest against the defendants with a direction to the plaintiffs and defendant No.2 therein to effect partition of the suit properties amicably with specific direction in respect of 'Kha' schedule property or with the assistance of the Court declaring the M.S. RoRs.entry vide Annexure-10 to be erroneous and the order in Mutation Case No.1545 of 1990 as illegal and unenforceable. Against the judgment and decree therein dtd. 23/8/1999, respondent No.1 approached the learned court below with the appeal and it was disposed of by judgment dtd. 21/4/2004 setting aside the judgment and decree in the suit and for its fresh disposal according to law impleading it as a defendant. As a result, the appellants filed the instant appeal challenging the decision of the learned court below in Title Appeal No. 44 of 2003 on the ground that the same is liable to be interfered with since delay was condoned and also the leave to prefer the appeal was granted ex parte.

(3.) Heard Mr. Mishra, learned counsel for the appellants and Mr. Ray, learned AGA for the respondents.