Akshaya Kumar Rath JUDGMENT
Dr. Akshaya Kumar Rath, J.
1. By this application under Article 227 of the Constitution of India, challenge is made to the order dated 26.02.2014 passed by the learned District Judge, Cuttack in R.F.A. No. 17 of 2011, whereby and whereunder, learned appellate court rejected the application of the petitioner under Order XXII Rule 10 C.P.C. to substitute him in place of the deceased-appellant.
2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the opposite party as plaintiff instituted C.S. No. 467 of 2006 in the court of the learned Civil Judge (Sr. Div.), 1st Court, Cuttack for specific performance of contract impleading one Lokanath Das as defendant. The defendant entered appearance and filed written statement denying the assertions made in the plaint. The suit was decreed. Assailing the judgment and decree, the defendant filed R.F.A. No. 17 of 2011 before the learned District Judge, Cuttack. Since there was delay in filing the appeal, an application under Sec. 5 of the Limitation Act was filed to condone delay. While the matter stood thus, the appellant died on 29.06.2013 leaving behind his widow, son and daughter. It is apt to state here that during pendency of the suit, the petitioner had purchased the suit land from the defendant-appellant by means of a registered sale deed dated 19.04.2010 and mutated the same in his name. After death of the defendant-appellant, he filed an application under Order XXII Rule 10 C.P.C. to allow him to substitute in place of the deceased-appellant and continue the appeal. According to him, since the legal representatives of the deceased-appellant have not taken steps for substitution, he is seriously affected. His interest has devolved after him. The respondent filed objection to the same stating therein that the learned trial court had passed the order of status quo. Violating the same, the defendant-appellant alienated the property to deprive the plaintiff from the fruits of litigation. The transaction is void. Learned appellate court held that the alleged sale deed executed in favour of the petitioner by the defendant can be treated as non-existent. The petitioner has no right to be substituted in place of the deceased-appellant and rejected the petition.
3. Mrs. Padmaja Pattanaik, learned counsel for the petitioner submitted that during pendency of the suit, the defendant alienated the land in favour of the petitioner by means of a registered sale deed for a valid consideration. Thereafter, the petitioner mutated the land in his favour. Since the legal heirs of the defendant-appellant have not taken steps to prosecute the appeal, the petitioner filed an application for substitution. She further submitted that there was devolution of interest. She relied on the decision of the apex Court in the case of Dhurandhar Prasad Singh vs. Jai Prakash University and others, MANU/SC/0381/2001 : AIR 2001 SC 2552.
4. Per contra, Mr. Pradipta Kishore Nanda, learned counsel for the opposite party submitted that learned trial court directed the parties to maintain status quo over the suit property. The defendant executed the sale deed in favour of the petitioner in contravention of the order of status quo. The alleged sale deed is void. Thus, there is no devolution of interest upon the petitioner.
5. The apex Court in the case of Dhurandhar Prasad Singh (supra) held that Order XXII Rule 10 C.P.C. provides for cases of ass........