KAMAL NARAYAN VERMA vs SMT. MANKI BAI

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CGHC010040032023
NAFR
Digitally signed by
INDRAJEET SAHU
Date: 2026.10.30
12:48:23 +0530
INDRAJEET
SAHU
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 160 of 2023
1 - Kamal Narayan Verma S/o Shri Angadram Verma Aged About 54 Years
R/o Village Siltara, Tehsil And, District : Raipur, Chhattisgarh.
... Petitioner(s)
Versus
1 - Smt. Manki Bai W/o Late Lakshman Chandrakar Aged About 72 Years
2 - Santoshi Chandrakar D/o Late Lakshman Chandrakar Aged About 34
Years
Respondents No.1&2 are R/o Village Panchayat Khauli, Tehsil- Arang, District
Raipur Chhattisgarh.
3 - Savita Chandrakar D/o Late Lakshman Chandrakar Aged About 32 Years
R/o 8/27, Vrindavan B.S.U.P Colony, Saddu, PS- Mowa, Tehsil Arang, District
: Raipur, Chhattisgarh
4 - Kaushilya Chandrakar D/o Late Lakshman Chandrakar Aged About 42
Years R/o Village Kharora, Ward No.-1, Tehsil And, District : Mahasamund,
Chhattisgarh.
(Note-late Laksham Chandrakar, who was petitioner in MA No.94/2006,
expired on 26.04.2008, hence his LRs are named as party as respondents
No.1 to 4.)
5 - State of Chhattisgarh Through Collector Raipur Chhattisgarh.
... Respondent(s)
(Cause-title taken from Case Information System)
For Petitioner : Dr. Shiv Kumar Shrivastava, Advocate.
For Respondents 1 to 4 : Shri Sourabh Gupta, Advocate.
For Respondent/State : Shri Siddhant Tiwari, Panel Lawyer.
Hon’ble Shri Justice Ravindra Kumar Agrawal, J
Order on Board

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28.10.2026
1. The present writ petition under Article 226/227 of the Constitution of
India has been filed by the petitioner against the order dated
23.03.2015 passed by IVth Additional District Judge, Raipur, in Civil
Appeal No.23-A/2004 whereby the appeal filed by the petitioner has
been dismissed. The petitioner has also challenged the proceeding of
case No.MJC/50/2020 initiated by respondents No.1 to 4 before the
VIIth Civil Judge, Class-II, Raipur.
2. The petitioner prayed for following reliefs in the writ petition:
“10.1 Hon'ble court may kindly be please to allow this writ
petition in the fact and circumstances and issue necessary writ to
quash registration and proceedings of case no. MJC/50/2022, as
instituted by the Respondent 1 to 4, before the learned Trial
Court of 7th Civil Judge Class 2, Raipur (Annexure P/1).
10.2 Hon'ble court may kindly be please to allow this writ petition
in the fact and circumstances and issue necessary writ to quash
order dated 23.03.2015 of learned Appellate Court of 4th
Additional District Judge, Raipur, as passed in a Civil Appeal No.
23A/04 (Annexure P/2), titled as Kamal Narayan Verma vs
Lakshman Chandrakar and another and direct the said court to
decide the case in accordance direction of this Hon'ble Court.
10.3 Any other relief, which may be deemed, fit by this Hon'ble
Court just and proper in the facts and circumstances of the case
may also be provided in favour of the petitioner.”
3. Learned counsel for the petitioner would submit that the respondents
No.1 to 4 initiated a proceeding under Section 144 CPC for restitution
of possession of their subject land which was obtained by the petitioner
in execution of judgment and decree passed by the appellate court
dated 24.03.2005. He would submit that the petitioner filed a Civil Suit
for declaration of title and permanent injunction over the suit land

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situated at Village Charoda, Tehsil and District Raipur against one
Lakshman Chandrakar. In the civil suit, the defendant Lakshman
Chandrakar remained exparte, however, the said civil suit was
dismissed by the trial court vide judgment and decree dated
05.08.2003. Thereafter, the plaintiff filed an appeal before the appellate
court which was allowed and judgment and decree has been passed in
favour of plaintiff on 24.03.2005. In the appellate court also the
defendant Lakshman Chandrakar remained exparte, however, the said
Lakshman Chandrakar filed Misc. Appeal No.94 of 2006 before this
court challenging the judgment and decree passed by the appellate
court. During pendency of said Misc. Appeal, Lakshman Chandrakar
died in the year, 2008, however, his death was not informed to this
court and got the Misc. Appeal filed by him decided on 26.03.2014 by
which the Misc. Appeal was allowed and the matter was remitted back
to the appellate court after setting aside the judgment and decree
dated 24.03.2005. While remanding the matter back by this court to the
appellant court, the parties were directed to remain present before the
appellate court on 05.05.2014. It was also directed in the said order
that if the parties fail to appear before the appellate court, the appellate
court shall issue summons to such party. He would further submit that
though the petitioner could not appear before the appellate court on
05.05.2014, but no notice have been issued to him as ordered by this
court and he was unaware about the dates of proceeding and
ultimately the appeal filed by the petitioner has been dismissed on
23.03.2015 for want of prosecution by the appellate court. After
dismissal of appeal for want of prosecution on 23.03.2015 the

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respondents No.1 to 4 initiated a proceeding under Section 144 of CPC
on 26.09.2022. Since the order passed in Misc. Appeal by this court
itself suffers from illegality as before passing order on 26.03.2014 the
appellant in the said Misc. Appeal Lakshman Chandrakar had already
died in the year, 2008 and therefore the appeal itself was abated, and
the matter could not have been remitted by allowing the said appeal.
He would also submit that the appellate court should have considered
the service of notice upon the parties if they failed to make their
appearance. Though the order sheet discloses that notice was ordered
to be issued on 23.01.2015, but there is no service report as to
whether the said notice was actually served upon the parties or not, yet
the appeal has been dismissed for want of prosecution. The petitioner
was put in possession in execution of the judgment and decree dated
24.03.2005 passed by the appellate court, therefore, it cannot be said
that he has been wrongly put in possession in execution of the decree.
The petitioner came to know about decision of appeal only when he
received notice of the proceeding initiated by respondents No.1 to 4
under Section 144 of CPC and thereafter the present writ petition has
been filed for quashing of entire proceeding initiated by respondents
No.1 to 4 and also challenging dismissal of appeal before the appellate
court. He would further submit that the petitioner may be provided an
opportunity to contest the claim of respondents No.1 to 4 and he is
entitled to get his appeal restored for adjudication on its own merits.
Therefore, the writ petition may be allowed as claimed by the petitioner.
4. On the other hand, learned counsel for respondents No.1 to 4 oppose
the submissions made by the counsel for the petitioner and would

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submit that since possession of subject property was delivered
pursuant to judgment and decree dated 24.03.2005 passed by the
appellate court, however, in the subsequent occasion the judgment and
decree passed by the appellate court was set aside by this court in
Misc. Appeal No.94 of 2006 vide order dated 26.03.2014 and the
appeal filed by the petitioner has been dismissed for want of
prosecution, the respondents No.1 to 4 are entitled to get the
possession back from petitioner with respect to subject land. The
judgment and decree of the appellate court has been reversed in the
appeal and there is no final adjudication till date which duly satisfy the
requirement of Section 144 of CPC for which the respondents No.1 to
4 are prosecuting before the trial court. Therefore, the proceedings are
very much maintainable and it cannot be quashed at threshold. With
respect to challenge to the order dated 23.03.2015, the petitioner have
an alternative remedy to approach before the competent appellate
court to file appropriate application, but in jurisdiction under Article 227
of the Constitution of India, the impugned order dated 23.03.2015
cannot be interfered with as there is no illegality or jurisdictional error in
passing such order. When there was specific direction to appear in the
proceeding on 05.05.2014 and petitioner failed to appear, the appellate
court issued notice to the parties on 23.01.2015 and when the
appellant failed to appear, his appeal has been dismissed for want of
prosecution. Therefore, there is no merit in the present writ petition on
both these challenges and the same is liable to be dismissed.
5. I have heard the counsel for the parties and perused the documents
annexed with the petition.

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6. From perusal of documents annexed with the writ petition and after
having considered the rival contentions put forth by the counsel for the
parties, the sequence of events appear to be undisputed that the
petitioner filed a Civil Suit for declaration of title and permanent
injunction before the trial court in which the defendant Lakshman
Chandrakar remained exparte. The suit was dismissed on merits vide
judgment and decree dated 05.08.2003 and thereafter the plaintiff filed
an appeal before the appellate court in which the judgment and decree
has been passed on 24.03.2005. In the appeal before the appellate
court, the defendant Lakshman Chandrakar remained exparte and it
was an exparte judgment and decree passed by the appellate court.
The defendant Lakshman Chandrakar challenged the said judgment
and decree dated 24.03.2005 before this court by filing Misc. Appeal
No.94 of 2006 which was ultimately decided on 26.03.2014 by which
the matter was remitted back to the appellate court for deciding the
appeal afresh after providing opportunity to appellant Lakshman
Chandrakar and directed the parties to remain present before the
appellate court on 05.05.2014, failing which the appellate court was
directed to issue notice to the concerned parties. Thereafter, the
appellate court issued notice to the parties on 23.01.2015 and
ultimately dismissed the appeal filed by the petitioner vide order dated
23.03.2015 for want of prosecution. It is also not in dispute that after
dismissal of appeal on 23.03.2015 by the appellant court, the
respondents No.1 to 4 filed their application under Section 144 of CPC
on 26.09.2022 before the trial court which is pending there.

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7. The two fold challenges of the petitioner in the present writ petition is
the order dated 23.03.2015 passed by the appellate court by which the
appeal has been dismissed for want of prosecution and secondly the
proceeding initiated by the respondents No.1 to 4 under Section 144 of
CPC before the trial court.
8. With respect to challenge to order dated 23.03.2015 passed by the
appellate court is concerned, remedy is provided under Order 41 Rule
19 of CPC to get the appeal restored which was dismissed for want of
prosecution. Order 41 Rule 19 CPC reads as under:
“ 19. Re-admission of appeal dismissed for default.— Where
an appeal is dismissed under rule 11, sub-rule (2), or rule 17 or
rule 18, the appellant may apply to the Appellate Court for the re-
admission of the appeal; and, where it is proved that he was
prevented by any sufficient cause from appearing when the
appeal was called on for hearing, or from depositing the sum so
required, the Court shall re-admit the appeal on such terms as to
costs or otherwise as it thinks fit.”
9. While considering the application filed under Order 41 Rule 19 of CPC,
if any, the appellate court is required to consider the cause shown by
the appellant that he was prevented by any sufficient cause from
appearing when the appeal was called on for hearing. Since the
appellant/petitioner had not approached before the appellate court for
re-admission of the appeal which was dismissed in default, this court
cannot examine the validity of the order that it suffers from any
jurisdictional error or perversity. Order 41 Rule 17 of CPC clearly
provides that if on the day fixed for hearing of the appeal, the appellant
does not appear when the matte was called on for hearing, the appeal
may be dismissed, which has rightly been done by the appellate court.

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If the appellant seeks restoration of his appeal, he may make an
application before there to get the appeal restored under the provisions
of Order 41 Rule 19 CPC.
10. So far as the other ground raised by the petitioner that proceeding of
Section 144 CPC is not maintainable is concerned, it is necessary here
to notice the provisions of Section 144 CPC which reads as under:
“144. Application for restitution- (1) Where and in so far as a
decree or an order is varied or reversed in any appeal, revision
or other proceeding or is set aside or modified in any suit
instituted for the purpose, the Court which passed the decree or
order shall, on the application of any party entitled to any benefit
by way of restitution or otherwise, cause such restitution to be
made as will, so far as may be, place the parties in the position
which they would have occupied but for such decree or order or
such part thereof as has been varied, reversed, set aside or
modified; and, for this purpose, the Court may make any orders,
including orders for the refund of costs and for the payment of
interest, damages, compensation and mesne profits, which are
properly consequential on such variation, reversal, setting aside
or modification of the decree or order.
Explanation.— For the purposes of sub-section (1), the
expression "Court which passed the decree or order" shall
be deemed to include,—
(a) where the decree or order has been varied or reversed
in exercise of appellate or revision jurisdiction, the Court of
first instance;
(b) where the decree or order has been set aside by a
separate suit, the Court of first instance which passed such
decree or order;
(c) where the Court of first instance has ceased to exist or
has ceased to have jurisdiction to execute it, the Court
which, if the suit wherein the decree or order was passed
were instituted at the time of making the application for

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restitution under this section, would have jurisdiction to try
such suit.
(2) No suit shall be instituted for the purpose of obtaining any
restitution or other relief which could be obtained by application
under sub-section (1)”
11. The petitioner could not dispute that in execution of judgment and
decree dated 24.03.2005 the possession of suit property was delivered
to him, however, the said judgment and decree has been set aside by
this court vide order dated 26.03.2014 in Misc. Appeal No.94 of 2006.
The order passed in Misc. Appeal has not been challenged by the
petitioner in any other forum or even the petitioner had not filed any
application for review on the ground that appellant Lakshman
Chandrakar already died much before adjudication of the appeal and
therefore the order could not have been passed on merits. None of the
parties informed about death of Lakshman Chandrakar before this
court in Misc. Appeal No.94 of 2006 and therefore it cannot be said that
the order dated 26.03.2014 passed in Misc. Appeal No.94 of 2006
suffers from any illegality.
12. Further, Section 144 of CPC provides that if the decree is reversed or
varied in any appeal or other proceeding, the court which passes the
decree shall, on an application of the parties entitled thereto, by way of
restitution of otherwise, cause such restitution to be made so far as
may be, place the parties in the position which they would have
occupied. The respondents No.1 to 4, on the ground that the decree
through which the possession of the suit property was delivered to the
petitioner, has been set aside by the appellate court and there is no
adjudication further in favour of the plaintiff, the possession of the suit

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property may be restituted in their favour for which they are
prosecuting their application before the trial court, in which I do not find
any illegality or perversity to interfere in the proceeding initiated by
respondents No.1 to 4 under Section 144 of CPC.
13. Thus, considering the entire surrounding facts and circumstances of
the case and documents available in the writ petition, this court does
not find any jurisdictional error, illegality or perversity in the impugned
order dated 23.03.2015 passed by the appellate court or in the
proceeding initiated by the respondents No.1 to 4 under Section 144
CPC before the trial court.
14. The writ petition fails and is hereby dismissed.
Sd/-
(Ravindra Kumar Agrawal)
Judge
inder