PRAVASINI BEHERA Vs. SANKAR DAS

JUDGEMENT

(1.) THIS writ appeal arises out of an order dated 24.9.2007 passed by a learned Single Judge of the writ Court in W.P. (C) No. 15159 of 2006.

(2.) THE material facts of the case are that on 7.11.1998 a partition suit being Title Suit No. 609 of 1998 was filed by one Pravasani Behera, the present appellant, against the writ petitioner Sankar Das and other opposite parties. The writ petitioner and other opposite parties after being served with notice appeared before the learned Civil Judge (Senior Division), Bhubaneswar on or about 24.11.1998. As thereafter no steps were taken by the writ petitioner along with other opposite parties, the defendants in the suit were set ex parte on 20.08.1999. Then, the suit was decreed ex parte on 17.08.2001. After about one year and three months a Misc. Case being Misc. Case No. 588 of 2002 (first Misc. Case) was filed by the writ petitioner/ defendant No. 1 in the suit, under Order 9, Rule 13 of the Civil Procedure Code to set aside the ex parte decree which was dismissed for default on 14.7.2003. Again almost after one year and six months another Misc. Case being Misc. Case No. 71 of 2005 (second Misc. Case) was filed by the writ petitioner/defendant No. 1 to restore the first Misc. Case. On 06.12.2005 the second Misc. Case No. 71 of 2005 was also dismissed for default. Thereupon, notices were received by the parties in connection with appointment of Commissioner. On 26.06.2006 a C.M.A. No. 293 of 2006 along with I.A. No. 304 of 2006 was filed by the writ petitioner/defendant No. 1 for setting aside the dismissal order dated 6.12.2005 and also to restore the first Misc. Case No. 588 of 2002. Both the matters were taken up for hearing by the learned Civil Judge (Senior Division) and were dismissed by a reasoned order dated 25.10.2006. Challenging that order, the writ petition, being W.P.(C) No. 15159 of 2006, was filed on 3.11.2006.

(3.) ONE basic question which comes for consideration in this case is, whether such a writ petition is maintainable in a proceeding arising out of a Partition suit filed in a Civil Court of competent jurisdiction.