BENUDHAR DEBATA vs UPENDRA PRASAD DEBATA
- Court
- Odisha High Court
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1826 of 2016
[CNR No.ODHC010554082016]
Benudhar Debata … ... Petitioner
-Versus-
Upendra Prasad Debata and
others
... … Opp. Parties
Advocates appeared in this case:
For Petitioner : Mr. Susanta Kumar Mohapatra
on behalf of
Mr. Satyaranjan Mohapatra, Advocate
For Opp. Parties : Mr. Prafulla Kumar Lenka
CORAM:
THE HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
J U D G M E N T
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Dates of Hearing:05.10.2026 & 09.10.2026
Date of Judgment:29.10.2026
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MRUGANKA SEKHAR SAHOO, J.
1 . Invoking the Articles 226 and 227 of the Constitution
of India, order dated 27.09.2016 and order dated
04.10.2016 passed by the learned Civil Judge (Senior
Division), Anandapur in T.S. No.2/2 of 1975-76 (Final
Decree) has been challenged.
CMP No.1826 of 2016 Page 1 of 9
2. By order dated 27.09.2016 of the learned Civil Court,
the report of the Civil Court Commissioner was accepted in
part, where there is no objection amongst the parties for
execution of the decree. Regarding the rest part, the parties
to the suit (Final Decree) were directed to make allotment of
share amongst them amicably. By order dated 04.10.2016,
adjournment sought for by the defendant/opposite party
no.6 was rejected. The operative portion of the order dated
04.10.2016 dealing with the objections to the preliminary
decree is reproduced herein:
“ …. Gone through the case record and found that
there is force in the objection. Hence, objection raised
by the plaintiff/petitioner, Defdt./O.P.1, 5 series.
Defdt/O.P.6, Defdt/O.P.3 is accepted. Where as the
contention of Defdt./O.P.2 is concerned law is well
settled that this court cannot go beyond the
preliminary decree. So he is at liberty to move to
higher forum, if required.
Issue writ to the Civil Court Commissioner,
afresh to make partition to aforesaid areas as
mentioned in the objection by parties and put up on
07.11.16 awaiting his report.”
3. The matter involves the final decree proceeding out of
two civil suits. One of the suit T.S. No.2/2 of 1975-76 was
instituted on 08.01.1975 by the present opposite party
namely Shri Upendra Prasad Debata against the
predecessor in interest of the present petitioner Shri
Benudhar Debata and nine others. The suit ended up before
this Court in F.A. No.213 of 1977 which was disposed of by
the Division Bench of this Court by order dated 14.11.1994
in terms of the petition of compromise filed by the parties.
CMP No.1826 of 2016 Page 2 of 9
4 . Thereafter writ was issued on 22.01.1998 by the
learned trial court for partition of the suit property after the
decree was redrawn by the learned trial Court as per the
directions of the Division Bench by order dated 14.11.1994
in F.A. No.213 of 1977.
5 . The learned trial court by order dated 03.08.2009 had
redrawn the preliminary decree. Thereafter by interim order
dated 13.05.2010 passed by this Court, the final decree
proceeding before the learned trial court was stayed. The
stay order was vacated on 25.01.2012. Thereafter, the
report of the Civil Court Commissioner was filed on
19.11.2012.
6 . The order dated 02.12.2009 by the learned trial court
was modified by order dated 01.10.2013 in terms of the
order passed by this Court in W.P.(C) No.2736 of 2010 and
the plaintiff was directed to take steps for issuance of writ
and writ was issued by the Civil Court on 06.02.2014.
Thereafter, further writs were issued on 05.07.2016 and
04.10.2016 by the learned trial court.
The final decree proceeding before the learned Trial
Court was stayed by order dated 16.12.2016 in Misc. Case
No.1934 of 2016 arising out of the present CMP.
The stay order stood vacated before the learned trial
court as per the direction of the Hon’ble Supreme Court in
Asian Resurfacing of Road Agency Pvt. Ltd. and
another Vs. Central Bureau of Investigation:2018(16)
SCC 299 and the matter proceeded further. Apparently,
CMP No.1826 of 2016 Page 3 of 9
beyond 16.11.2021 no interim order is operating and the
final decree proceeding has proceeded further.
7. Mr. Lenka, learned counsel appearing for the opposite
party nos.4, 5, 7, 9 and 10 raises serious objection to the
averments made in the I.A. seeking substitution, to the
application seeking setting aside of abatement as well as to
the application seeking condonation of delay. He highlights
the facts and circumstances that the plaintiffs-petitioners
are well aware of the demise of the opposite parties, the
delay is not at all explained much less satisfactorily.
8. The report dated 10.08.2026 received from the learned
trial court regarding the further developments in the
pending final decree proceeding after 16.11.2021 is
reproduced herein:
“17. On dtd. 06.03.2023, the counsel for the
plaintiff intimated this court in shape of memo that
the plaintiff (Upendra Prasad Debata) has already
died. Further the order sheet dtd.14.08.2023
reveals that the defendant no.1 (Rangadhar
Debata) has died on 22.11.2022 and the record
was posted for substitution of LRs of deceased
plaintiff and defendant no.1.
On dtd. 13.10.2023, the LRs of the Plaintiff
appeared before this Court and filed substitution
petition to substitute them in place of deceased
plaintiff to proceed the final decree proceeding.
The petition was allowed on dtd. 17.11.2023 and
it was directed to file consolidated plaint and
carry out substitution. The LRs of deceased D-1 &
D-2 filed petition on dtd.14.05.2024 to substitute
them in place of the said deceased defendants
and the said petition was allowed on
dtd.05.09.2024 and direction was made to file
consolidated plaint and to carry out substitution.
CMP No.1826 of 2016 Page 4 of 9
On dtd. 12.12.2025, the Counsel for the plaintiff
filed a memo stating that defendant no.6 has
died. As no substitution made in respect of
deceased D-6, the case was abated against the
defendant no.6 on dtd. 06.04.2026.
18. Now the case is posted to 24.08.2026 for filing
of consolidated cause title of the final decree
proceeding by substituting the LRs of deceased
plaintiff and defendant nos.1 & 2.”
9. Having heard the learned counsel for the petitioner
and the opposite parties, the following questions of law were
formulated as reflected in the order dated 05.10.2026 at
paragraph-8 and are reiterated herein:
9.1 When the present opposite parties, who are the
plaintiffs before the learned trial court, have substituted all
the defendants whether they can take a plea before this
Court that they have no knowledge of some of the
defendants to have passed away and that they became
aware after the present opposite parties who are defendants
before the learned trial court, through their counsel, filed
memo dated 12.08.2026 under Order 22 rule 10A,
intimating this Court that the opposite parties no.1, 2 and 4
have passed away. The date of passing away of the
defendants is specifically mentioned in the memo.
9.2 As the plaintiffs have allowed abatement of the suit
against defendant no.6 before the trial court, whether this
Court can substitute said defendant no.6 at this stage in the
CMP.
10. Learned counsel for the petitioner had adjournment on
05.10.2026 to address the issue that arises further before
CMP No.1826 of 2016 Page 5 of 9
this Court: whether single Bench of this Court by exercising
its jurisdiction under Article 226 and 227 of the
Constitution of India in CMP, can reopen a decree drawn
pursuant to order of a division Bench in F.A. No.213 of
1977 disposed of by order dated 14.11.1994.
11. However, it is submitted by the learned counsel for the
petitioner that the petitioner has nothing to challenge in the
order passed by the Division Bench of this Court dated
14.11.1994 in F.A. No.213 of 1977.
12. For reference, the records of the F.A. No.213 of 1977
was called for and perused. The F.A. was filed by Rangadhar
Debata, Upendra Prasad Debata (present respondent) being
the respondent. The order of the Division Bench in
disposing of the said F.A. dated 14.11.1994 is reproduced
herein:
“ There were 10 respondents in this appeal out
of whom respondent no.7 had died in the trial court.
His name stood deleted from the memorandum of
appeal, vide order no.13 dated 28.2.1980.
Respondents 8 to 10 were defendants 8 to 10 in the
trial court. In the decree which was challenged in
this appeal no right was created in their favour and,
therefore, a prayer was made to the Court to dismiss
the appeal as against them (vide order no.33 dated
19.11.1980). A compromise petition was filed in
which respondents 1, 3, 4, 5 and 6 have joined. The
compromise petition was accepted and, therefore, the
appeal was disposed of on compromise as against
them. Therefore, the appeal survived only as against
respondent no.2. The appellant was required to file
Paper Books on compulsory documents within a
period of 5 weeks form 19.3.81. The said order was
peremptory in the sense that failing compliance the
appeal would be dismissed as against respondent
CMP No.1826 of 2016 Page 6 of 9
no.2. The appellant did not comply with the said
order. Therefore, the effect would be that the appeal
still stand dismissed as against respondent no.2.
This is so because, the appeal stood disposed of as
against the other respondents previously as already
stated. Thus the order recording the dismissal of the
appeal would mean that the appeal stood dismissed
as against respondent no.2.
The appeal has thus been disposed of. A decree
has to be drawn up incorporating the petition of the
compromise as a part of the decree.”
13. Pursuant to the order dated 14.11.1994 directing the
decree to be drawn up the decree was signed and sealed on
12.12.1994 by the Deputy Registrar of this Court.
Thereafter Misc. Case No.305 of 2008 was filed by the
respondent no.3 in the appeal to recall the order dated
14.11.1994. The said misc. case was considered by a
coordinate Bench presided by learned Single Judge and
was dismissed by order dated 13.02.2013.
14. Thereafter, Misc. Case No.332 of 2014 was filed U/s.52
of the C.P.C. by Sri Upendra Prasad Debata-respondent
with the following prayer:
“… The petitioner therefore humbly prays that your
lordships may kindly be graciously pleased to allow
this petition and further be pleased to modified the
decree dtd.12.12.1994 in F.A. No.213/1977 by
substituting the decree as follows:
“The appeal is disposed of in terms of
petition of compromise and incorporation of
the petition of compromise do form part of the
decree. …”
CMP No.1826 of 2016 Page 7 of 9
15. The coordinate Bench of learned Single Judge disposed
of the said Misc. Case No.332 of 2024 by order dated
15.04.2015, which is reproduced herein:
“ Heard.
In view of the specific order passed on 14.11.1994
that the decree has to be drawn up incorporating the
petition of the compromise as the part of the decree
and thereafter on12.12.1994, the decree has been
sealed and signed, the learned counsel for the
petitioner does not further press this Misc. Case for
its disposal on merit as the grievance according to
him has already been redressed.
The Misc. Case are accordingly disposed of.
The case record be returned back to the Court
below.”
16. The petitioner-Benudhar Debata was not a party to the
first appeal. He has stepped into the shoes of Shankarsan
Debata, who was the defendant in the suit. Now after
unfortunate demise of Benudhar Debata, the present
petitioners Sekhar Prasad, Amar Prasad and Samir Prasad
being his three sons have substituted themselves in the
present CMP. Before the trial Court, the present opposite
parties have been substituted by filing application.
Therefore, the demise of the said parties is well within the
knowledge of the petitioner. Before this Court in the CMP,
I.A. No.1860 of 2026 was filed on 23.09.2026 which is
almost after two years of filing of the I.A. before the trial
court for substitution. Therefore, the delay is filing the I.A.
cannot be condoned. Accordingly, the abatement cannot be
set aside.
CMP No.1826 of 2016 Page 8 of 9
17. The contentions of the petitioners in the present case
have to be and are rejected as it has the effect of
revisiting/redrawing the decree that is pursuant to order
dated 14.11.1994 passed by the Division Bench of this
Court in the F.A. No.213 of 1977.
18. The efforts to revisit the decree drawn by order of the
Division Bench has earlier failed in view of the order dated
13.02.2013 in Misc. Case No.305 of 2008 (arising out of
F.A. No.213 of 1977) and order dated 15.04.2015 in Misc.
Case No.332 of 2014 (arising out of F.A. No.213 of 1977).
It is held that the present petitioners are bound by the
modified preliminary decree passed by the learned trial
court in terms of the decree of this Court dated
12.12.1994;
having stepped into the shoes of the predecessor, who
was/were party before this Court, present petitioners
cannot have a better right so as to challenge the order in
the F.A. and the resulting decree which have attained
finality as they have never been challenged before the
higher forum.
19. The CMP is dismissed being devoid of any merit, the
petitioners not being entitled to any of the reliefs sought
for.
Costs reluctantly made easy.
(Mruganka Sekhar Sahoo)
Judge
Orissa High Court, Cuttack
th
The 29 October, 2026/Gs/Radha
Signature Not Verified
Digitally Signed
Signed by: RADHARANI JENA
Reason: Authentication
Location: OHC
Date: 29-Oct-2026 17:41:34
CMP No.1826 of 2016 Page 9 of 9