NAKA DANDU Vs. SODI SAVITRI

JUDGEMENT

(1.) THIS revision is directed against the appellate order passed by the Second Addl. District judge, Berhampur, in Misc. Appeal No. 10/83 (Misc. Appeal No. 10/1982 -GDC) confirming the order passed by the Munsif dated 24 -2 -1982 in MJC No. 13/82.

(2.) THE relevant facts giving rise to this revision are as follows : One Sodi Chandrama and her daughter, the present opp. party No. 1 brought Title Suit No. 15/72 in the Court of the Munsif, Berhampur, against the present opp. parties Nos. 2 to 5 impleaded as defendants for mainte - nance and the same was decreed by the Munsif by its decree dated 21 -1 -1974. In execution of the said decree in E. P. No. 12/78 some lands were attached and were brought to sale which was purchased by the decree -holder Sodi Chandrama on 29 -1 -1980, prior to the confirmation of the sale the present petitioner filed an application under Order 21, Rule 58, CPC, laying a claim over the said land by the Strength of a will dated 13 -5 -1972 said to have been executed by Sodi Lachamma, mother of the judgment -debtor. The said petition was registered as MJC No 5/80. During the pendency of the said MJC No, 5/80 Sodi Chandramma died. The present petitioner filed a petition to grant him some time in order to bring ail the legal representatives of Sodi Chandramma on record and the case was adjourned to 21 -12 -1981. On that day neither the petitioner nor his Advocate took any steps in the case. Since none appeared at the time when the case was called, the learned Munsif dismissed the MJC No. 5/80 for default of the petitioner. Thereafter the present petitioner filed a petition before the Munsif under Order 21, Rule 106 read with Section 151, CPC (registered as MJC No. 13/82) for restoration of MJC No. 5/80 and to dispose of the same on merits. After hearing the parties the learned Munsif dismissed the said MJC No. 13/82 by his order dated 24 -2 -1982. The present petitioner preferred Misc Appeal No. 10/82 (Misc. Appeal No. 10/82 -GDC) against the aforesaid order of the Munsif, which was disposed of by the 2nd Addl. District Judge, Berhampur. The appellate Court confirmed the order of the Munsif dated 24 -2 -1982, which has been impugned in this revision.

(3.) LEARNED counsel appearing for the opp. parties raised a point in this revision that MJC No. 5/80 itself was not maintainable after the sale of the properties had taken place. Admittedly the application under Order 21, Rule 58, CPC, was filed by the petitioner before the confirmation of sale. Therefore, I do not find any merit in the aforesaid contention on behalf of the opp. parties.