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2026 DAILYLAW 27159 (ORI)

Laxmi Kumari Mallick v. Godabari Sahoo (deceased)

2026-03-10

A C Behera

body2026
JUDGMENT : A.C. Behera, J. This 2 nd appeal has been preferred against the reversing judgment. 2. The appellant in this 2 nd appeal, i.e., Laxmi Kumari Mallick was the plaintiff before the learned trial court in the suit vide C.S. No.688 of 2014 and respondent before the learned 1 st appellate court in the 1 st appeal vide R.F.A. No.13 of 2017. 3. The husband of the respondent in this 2 nd appeal, i.e., Narayan Chandra Sahoo was the defendant before the learned trial court in the suit vide C.S. No.688 of 2014. The respondent Godabari Sahoo being the wife of Narayan Chandra Sahoo was the appellant before the learned 1 st appellate court in the 1 st appeal vide R.F.A. No.13 of 2017. The suit of the plaintiff(appellant in this 2 nd appeal) against the defendant Narayan Chandra Sahoo vide C.S. No.688 of 2014 was a suit for specific performance of contract. 4. As per the averments made in the plaint of the plaintiff(appellant in this 2 nd appeal), the suit properties stands recorded in the name of the private deity, i.e., Laxmi Narayan Thakuar. The defendant(Narayan Chandra Sahoo) was the marfatdar of the deity Laxmi Narayan Thakur. In order to construct a new house and station for the deity Laxmi Narayan Thakur, the defendant decided to sell the properties of the deity, i.e., suit properties and gave a proposal for sale of the same to the plaintiff. The plaintiff accepted to the said sale proposal of the defendant for a consideration amount of Rs.9,50,000/-. As the defendant was in urgent need of money, for which, the plaintiff gave him Rs.2,00,000/- in advance on dated 12.08.2013 out of the consideration amount of Rs.9,50,000/- and to that effect, the defendant executed a registered agreement to sell in favour of the plaintiff for selling the suit properties indicating a condition therein that, the defendant shall file a petition before the Endowment Commissioner for obtaining “No Objection” for sale and then, he(defendant) shall execute and register the sale deed in respect of the suit properties in favour of the plaintiff, but, the defendant- Narayan Chandra Sahoo did not show his willingness for obtaining “No Objection” for the sale of the suit properties. So, the plaintiff called the defendant to her house on dated 05.09.2014 for a discussion about the same, but, it was found that, the defendant is avoiding to perform the part of his contract. For which, without getting any way, the plaintiff approached the civil court by filing a suit vide C.S. No.688 of 2014 against the defendant-Narayan Chandra Sahoo praying for directing the defendant-Narayan Chandra Sahoo to execute and register the sale deed in favour of the plaintiff in respect of the suit properties after receiving the rest consideration amount of Rs.7,50,000/- and to deliver the possession of the suit properties to her(plaintiff) and to restrain the defendant-Narayan Chandra Sahoo permanently from executing and registering any sale deed in respect of the suit properties in favour of any other person along with the other relief, to which, she(plaintiff) is entitled for. 5. When, the defendant did not turn to participate in the suit, then, he(defendant, Narayan Chandra Sahoo) was set ex parte and the suit vide C.S. No.688 of 2014 was heard ex parte. During ex parte hearing of the suit, she(plaintiff) examined herself as P.W.1 and exhibited series of document on her behalf as Exts.1 to 8. 6. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned trial court passed ex parte judgment and decree in the suit vide C.S. No.688 of 2014 on dated 01.09.2016 and 06.09.2016 respectively in favour of the plaintiff and against the defendant subject to payment of cost and directed to the defendant-Narayan Chandra Sahoo to execute and register the sale deed in respect of the suit properties in favour of the plaintiff in accordance with law as per the agreement vide Ext.1 within three months after receiving the rest consideration amount, i.e., Rs.7.50,000/- and to pay cost of Rs.40,000/- to the plaintiff before execution of the sale deed depositing the said cost before the learned trial court. 7. When, during the pendency of the said suit vide C.S. No.688 of 2014, the defendant, i.e., Narayan Chandra Sahoo had expired, for which, the wife of the defendant, i.e., Godabari Sahoo challenged the aforesaid ex parte judgment and decree passed by the learned trial court in the suit vide C.s. No.688 of 2014 preferring 1 st appeal vide RFA No.13 of 2017 being the appellant against the plaintiff arraying her(plaintiff) as respondent. 8. 8. After hearing from the learned counsels of both the sides, the learned 1 st appellate court set aside the ex parte judgment and decree dated 01.09.2016 and 06.09.2016 respectively passed by the learned trial court in the suit vide C.S. No.688 of 2014 as per its judgment and decree dated 14.01.2020 and 22.01.2020 respectively assigning the reasons that, “the defendant in the suit vide C.S. No.688 of 2014, i.e., Narayan Chandra Sahoo was set ex parte on dated 16.01.2016 and he(defendant, Narayan Chanddra Sahoo) expired on dated 30.04.2016, which was much prior to the hearing of the argument in that suit. The ex parte judgment and decree in that suit vide C.S. No.688 of 2014 was passed on dated 01.09.2016 and 06.09.2016 respectively without substituting the legal heirs of the deceased defendant and without passing any order exempting the plaintiff from substituting the legal heirs of the defendant. For which, the ex parte judgment and decree passed in the suit vide C.S. No.688 of 2014 by the learned trial court was a nullity, because, the same was passed against the dead defendant. That apart, the suit properties are the properties of the deity Shri Laxmi Narayan Thakur, but, the deity was not made a party in the suit, though, the deity is the perpetual minor and a juristic person. For which, the deity was the necessary party in the suit vide C.S. No.688 of 2014. So, in absence of the deity, the suit of the plaintiff was not maintainable. Because, after the death of Narayan Chandra Sahoo, none was there to represent the deity in the suit, though as per law, the deity must be represented by the human being. For which, the ex parte judgment and decree passed in the suit vide C.S. No.688 of 2014 by the learned trial court was not legal. Therefore, the learned 1 st appellate court set aside the same and dismissed to the suit vide C.S. No.688 of 2014 of the plaintiff.” 9. On being aggrieved with the aforesaid judgment and decree passed by the learned 1 st appellate court against the plaintiff, the plaintiff challenged the same preferring this 2 nd appeal being the appellant against the wife of the defendant(who was the appellant in the 1 st appeal vide R.F.A. No.13 of 2017) arraying her as respondent. On being aggrieved with the aforesaid judgment and decree passed by the learned 1 st appellate court against the plaintiff, the plaintiff challenged the same preferring this 2 nd appeal being the appellant against the wife of the defendant(who was the appellant in the 1 st appeal vide R.F.A. No.13 of 2017) arraying her as respondent. When during the pendency of the 2 nd appeal, the respondent(wife of defendant, Narayan Chandra Sahoo) expired, then her LRs have been substituted in her place. 10. This 2 nd appeal was admitted on formulation of the following substantial questions of law, i.e.:- (i) Whether the learned 1 st appellate court was right in setting aside the trial court’s judgment on the ground of death of defendant prior to the hearing of the argument in the suit and whether the legal course is to remand back the matter to the learned trial court for taking appropriate steps for substitution and for fresh adjudication? (ii) Whether the marfatdar has the right to enter into an agreement to sale in respect of the property of a private deity? 11. I have already heard from the learned counsel for the appellant(plaintiff) and learned counsel for the respondent. 12. When, as per the findings and observations made by the learned trial court and the learned 1 st appellate court in their respective judgments and decrees on the basis of the materials available in the record, the aforesaid both the formulated substantial questions of law are inter-linked having ample nexus with each other, then, both the aforesaid formulated substantial questions are taken up together analogously for their discussions hereunder:- 13. It appears from the record, i.e., from the order-sheets of the learned trial court in the suit vide C.S. No.688 of 2014 that, “on dated 26.11.2015, the defendant(husband of the respondent) had filed written statement and thereafter, on dated 06.01.2016, he(defendant) was set ex parte. The ex parte argument in the suit vide C.S. No.688 of 2014 was heard by the learned trial court on dated 10.08.2016 and the ex parte judgment and decree was passed on dated 01.09.2016 and 06.09.2016 respectively.” 14. The ex parte argument in the suit vide C.S. No.688 of 2014 was heard by the learned trial court on dated 10.08.2016 and the ex parte judgment and decree was passed on dated 01.09.2016 and 06.09.2016 respectively.” 14. It is concurrent observations of the learned trial court as well as learned 1 st appellate court in their respective judgments and decrees that, the defendant-Narayan Chandra Sahoo had expired on 30.04.2016, which was much prior to the hearing of the argument in the suit vide C.S. No.688 of 2014. Because, the argument was heard on dated 10.08.2016. So, from the aforesaid order-sheets of the learned trial court and the judgments of the learned trial court and 1 st appellate court, it is clear that, much prior to the hearing of the argument in the suit vide C.S. No.688 of 2014, the sole defendant in that suit, i.e., Narayan Chandra Sahoo had expired, as, his death was on dated 30.04.2016 and the date of hearing of argument was on 10.08.2016. 15. The entire order-sheets of the learned trial court in the suit vide C.S. No.688 of 2014 do not reveal about the passing of any order exempting the plaintiff as per Order-22, Rule-4(4) of the C.P.C., 1908 from substituting the legal heirs of the deceased defendant-Narayan Chandra Sahoo. No application was filed or moved on behalf of the plaintiff for the same. 16. So, due to non-granting exemption to the plaintiff, through any order of the learned trial court from substituting the legal heirs of the deceased defendant-Narayan Chandra Sahoo and due to the passing of the judgment in the suit after hearing of the argument from the plaintiff against the dead defendant, it is held that, the judgment and decree in the suit vide C.S. No.688 of 2014 was passed by the learned trial court against the dead man, which is a nullity under law. For which, the said judgment and decree passed by the learned trial court in the suit vide C.S. No.688 of 2014 cannot be sustainable under law. 17. The conclusion drawn above finds support from the ratio of the following decisions:- (i) In a case between Katari Suryanaran and others vrs. For which, the said judgment and decree passed by the learned trial court in the suit vide C.S. No.688 of 2014 cannot be sustainable under law. 17. The conclusion drawn above finds support from the ratio of the following decisions:- (i) In a case between Katari Suryanaran and others vrs. Koppisetti Subba Rao and others : reported in AIR 2009 S.C.- 2907 that, Even, there is no intimation to the plaintiff on behalf of the learned counsel of the deceased-defendant about the death of the deceased-defendant in compliance with the provisions of Order- 22, Rule-10-A of the C.P.C., still then, the said provisions envisaged under Order-22, Rule-10-A of the C.P.C. does not take away the duty on the part of the appellant or plaintiff to file an application for condonation of delay in bringing on record the heirs and legal representatives of a deceased plaintiff/appellant or defendant/respondent within the period prescribed. (Para-15) (ii) In a case between Gurnam Singh(dead) through Legal Representatives and others vrs. Guubachan Kaur(dead) by Legal Representatives : reported in (2017) 3 SCC-414 that, Failure to bring LRs of a dead party on record within the stipulated time—Effect of—When, LRs of deceased litigant not brought on record within 90 days, then, such proceedings stand abated. Any decision in favour of and/or against the dead person renders such decision nullity. Such decree, being nullity, can be challenged at any time whenever they are sought to be enforced. (iii) In a case between Angadi Srinivas Dead by LRs vrs. M. Girija : reported in AIR 2016 (Karnataka)-176 that, When, decree passed by the lower appellate court in ignorance of death of sole defendant not brought on record. Though, the court is empowered to exempt a plaintiff from necessity of substituting the LRs of defendant, but, such an exemption can be granted before the judgment is pronounced, but, the same was not done. Thus, the appeal stands abated and the decree passed by the lower appellate court against the dead person by lower appellate court is declared as a nullity. (iv) In a case between Yoshwant Hariparit(since Deceased) through his legal heir sandip Balkrishna Parit and others vrs. Sunita Ashok Bhandare and others : reported in 2020(2) Maharashtra Law Journal-191 that, When, there is non-substitution of the legal heirs of the deceased Respondent Nos.4, 8 and 9, the plaintiff neither filed an application to bring L.Rs. (iv) In a case between Yoshwant Hariparit(since Deceased) through his legal heir sandip Balkrishna Parit and others vrs. Sunita Ashok Bhandare and others : reported in 2020(2) Maharashtra Law Journal-191 that, When, there is non-substitution of the legal heirs of the deceased Respondent Nos.4, 8 and 9, the plaintiff neither filed an application to bring L.Rs. of deceased defendants on record nor filed an application seeking exemption from necessity of substituting LRs of defendants, who had failed to appear or contest the proceeding. Deceased defendants were necessary parties to the suit. No relief sought by the plaintiff can be granted in absence of the LRs. of the deceased defendants. Appeal abated in its entirety. (v) In a case between Sabir vrs. Abdul Karim and others : reported in 2015(2) Civil Court Cases-455(Rajasthan) that, Non-impleadment of legal heirs of defendant, who was set ex parte. The court can grant exemption from the necessity of substituting legal heirs of any such defendant, who failed to file written statement or who having filed it, but, has failed to appear before the court in order to contest the suit. (vi) In a case between T. Gnanaval vrs. T.S. Kanagaraj : reported in 2009(2) Apex Court Judgments-70(S.C.) that, Exemption from bringing on record, LRs of deceased defendant as per Order-22, Rule-4 Sub-clause-(4) of the C.P.C.—Exemption must be sought before the judgment is pronounced. But, if decree is passed without any order for exemption for substitution the decree is nullity, even if, exemption is sought and granted after judgment is pronounced. Because, exemption to bring LRs. of deceased parties on record should be taken or granted by the court only before the judgment is pronounced and not after it. (vii) In a case between Gurnam Singh(D) Thr. Lrs. andothers vrs. Gurbachan Kaur(D) By Lrs. and others : reported in 2017(1) CLR-1188(S.C.) that, During the pendency of the 2nd appeal before the High Court, the appellant and two respondents expired and no application was filed to bring their legal representatives on record, on whom the right to sue devolve to file an application under Order-22, Rule- 3(2) applies on the death of the appellant and Order-22, Rule-4(3) applies in case of death of respondent. After 90 days from the death of either party, the appeal abates automatically. In other words, on 91 days, there is no appeal pending before the court, it is dismissed as abated. After 90 days from the death of either party, the appeal abates automatically. In other words, on 91 days, there is no appeal pending before the court, it is dismissed as abated. High Court subsequently allowed the appeal without substitution is a nullity and its validity can be questioned in any proceeding including execution proceeding, even in co-lateral proceedings. 18. Here in this suit/appeal at hand, when the sole defendant in the suit vide C.S. No.688 of 2014, i.e., Narayan Chandra Sahoo expired on 30.04.2016 much prior to the hearing of the argument in the suit vide C.S. No.688 of 2014 from the plaintiff by the learned trial court and when, the argument in the suit was heard on dated 10.08.2016, i.e., much after 90 days of the death of the defendant and when, prior to the hearing of the argument in the suit from the plaintiff, the suit was abated as per law and when, the plaintiff had not filed any application under Order-22, Rule-4(4) of the C.P.C. prior to the abatement of the suit as per law against the deceased defendant praying for exempting her(plaintiff) from substituting the legal heirs of the deceased defendant and when, no order was passed by the learned trial court granting exemption to the plaintiff from substituting the legal heirs of the deceased defendant prior to the abatement of the suit and when, the judgment and decree was passed by the learned trial court in the suit vide C.S. No.688 of 2014 against the dead person, i.e., against the defendant(Narayan Chandra Sahoo) after abatement of that suit, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the judgment and decree passed by the learned trial court in the suit vide C.S. No.688 of 2014 was a nullity. The same was not sustainable under law. For which, the judgment and decreed passed by the learned 1 st appellate court setting aside the judgment and decree passed by the learned trial court in the suit vide C.S. No.688 of 2014 on that ground cannot be held as erroneous. 19. The same was not sustainable under law. For which, the judgment and decreed passed by the learned 1 st appellate court setting aside the judgment and decree passed by the learned trial court in the suit vide C.S. No.688 of 2014 on that ground cannot be held as erroneous. 19. When, the learned 1 st appellate court set aside the judgment and decree of the learned trial court on the ground of non-substitution of the legal heirs of the deceased defendant by the plaintiff and when after the death of the defendant, his legal heirs were the necessary parties in the suit and when, it is settled propositions of law that, it is the duty of the court to give opportunity to the parties for the impleadment of the necessary parties in the suit like the legal heirs of the deceased defendant in the suit vide C.S. No.688 of 2014 without dismissing the said suit on that ground and when, the learned 1 st appellate court has not done so, then at this juncture, accepting the findings and observations made by the learned 1 st appellate court that, the judgment and decree passed by the learned trial court against the dead defendant was a nullity, it is held that, the ends of justice shall bestly be served, if the suit vide C.S. No.688 of 2014 shall be remitted back to the learned trial court for deciding the same afresh after giving opportunity to the plaintiff for the impleadment of the legal heirs of the deceased defendant after setting aside the judgment and decree of the learned trial court in full and the judgment and decree passed by the learned 1 st appellate court in part. 20. For which, there is some merit in this 2 nd appeal filed by the appellant/plaintiff. The same is to be allowed in part. 21. In result, this 2 nd appeal filed by the appellant/plaintiff is allowed in part. The impugned judgments and decrees passed in C.S. No.688 of 2014 and in R.F.A. No.13 of 2017 is set aside in part and the impugned judgment and decree passed by the learned trial court in C.S. No.688 of 2014 is set aside in full. 21. In result, this 2 nd appeal filed by the appellant/plaintiff is allowed in part. The impugned judgments and decrees passed in C.S. No.688 of 2014 and in R.F.A. No.13 of 2017 is set aside in part and the impugned judgment and decree passed by the learned trial court in C.S. No.688 of 2014 is set aside in full. The suit be and the same vide C.S. No.688 of 2014 filed by the plaintiff/appellant is remitted back to the learned trial court, i.e., to the court of learned Senior Civil Judge, Jajpur for deciding the same afresh as per law after giving opportunity to the plaintiff for substitution of the legal heirs of the deceased defendant and to dispose of the said suit vide C.S. No.688 of 2014 as per law as expeditiously as possible within a period of seven months from the date of filing the certified copy of this judgment by any of the parties before the learned trial court in the suit vide C.S. No.688 of 2014. The parties to this 2 nd appeal are directed to appear before the learned Civil Judge(Sr. Division), Jajpur on dated 25.03.2026 in the suit vide C.S. No.688 of 2014 for the purpose of receiving the directions of the learned Civil Judge(Sr. Division), Jajpur as to the further proceedings of that suit vide C.S. No.688 of 2014 on the basis of directions made in this judgment.