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2017 DIGILAW 731 (ORI)

Nilakantha Mohanta v. Govinda Mohanta

2017-07-15

D.DASH

body2017
JUDGMENT : This application under Article 227 of the Constitution has been filed seeking quashment of an order dated 18.01.2016 passed by the learned Civil Judge (Senior Division), Keonjhar in C.M.A. No. 05 of 2005 arising out of Execution Case No. 22 of 1994. 2. The lis in hand owes its initiation to the mid of the year 1948 and is by now just short of a year to be septuagenarian. By the order, which is impugned in this application, the final decree passed in T.S. No. 29 of 1948 about thirty years back i.e. on 04.02.1986 upon acceptance of the report of the Civil Court Commissioner followed by its sealing and signing on 06.08.1994 has been declared as nullity giving liberty to the petitioners of above noted CMA who are parties to the suit to initiate final decree proceeding afresh in respect of all the landed properties involved in the said suit which had been preliminarily decreed in terms of the compromise on 07.10.1980, with the compromise petition forming part of the preliminary decree. It may be stated here that consequential to the above order, the Executing Court has dropped the Execution Case by order dated 27.01.2016 with further direction that the possession of the property if delivered during pendency of the Execution Case in favour of either parties or outsiders on the basis of their claim shall remain intact till disposal of the final decree proceeding in the suit and until further round of the Execution proceeding. 3. After passing of the final decree upon acceptance of the report of the Civil Court Commissioner on 24.06.1985 followed by its engrossment over the stamp paper as well as its sealing and signing, the said decree was put to Execution by filing the Execution Case No. 22 of 1994. In the said Execution proceeding first an application came to be filed under section 47 of the Code of Civil Procedure (in short hereinafter called as ‘the Code’) which was numbered as M.J.C. No. 67 of 1995, questioning the executability of the said final decree on the ground that it is nullity, being passed against a party who was dead by then without bringing his legal representatives i.e. of Ganeswar (plaintiff no. 3) on record. Interestingly, the legal heirs of Ganeswar were parties in that CMA as also in the Execution proceeding. The petition was rejected by order dated 04.08.1998. 3) on record. Interestingly, the legal heirs of Ganeswar were parties in that CMA as also in the Execution proceeding. The petition was rejected by order dated 04.08.1998. Thereafter another petition under section 47 of the Code has been filed in the year 2005; the final order passed therein is now the subject matter. Although, it has been stated therein that those petitioners were not parties to the final decree and thus had no occasion to raise objection to the final decree and their predecessors-in-interest i.e. Ghanashyam @ Ganeswar Mohanta, the plaintiff no. 3 had not been noticed, the main thrust of the objection of the petitioners therein appears to be founded upon their apprehension of dispossession from the house constructed by them over the land under Plot No. 684 as also their dispossession from the property under their possession in case of Execution of the final decree passed in terms of the report of the Civil Court Commissioner. The relevant paras of the said petition as also the prayers are the followings:- “xxx xxx xxx xxx xxx 3. That, the present petitioners were not parties to final decree for which there is no occasion for them to raise objection in final decree. They or their ancestors Ghanashyam @ Ganeswar Mahanta has been not served any notice. 4. That, in the preliminary decree the compromise petition which forms part and parcel of the decree, speaks that the parties will continue to possess the different areas described in plaint schedule, where as in final decree and suit land in possession of the petitioners all plots nos. 640, 642, 684, 629, 630, 532, 533, 491, 395, 755, 756 and 762 are not allotted to them. The petitioners are residing in the house constructed by them over the plot No. 684, have been proposed to hand over to opposite party, as per report of Civil Court Commissioner. 5. That, the report of Civil Court Commissioner conspicuously silent as to allotment of shares of suit property in accordance with compromise and all the parties were not served notices to show their presence while passing their final decree. 6. That, the writ of the survey knowing Commissioner does not contain details of preliminary decree as well as final decree for which it cannot be acted upon. ” The petition initially had been dismissed. 6. That, the writ of the survey knowing Commissioner does not contain details of preliminary decree as well as final decree for which it cannot be acted upon. ” The petition initially had been dismissed. A revision thereafter being filed before the learned District Judge, no fruitful result yielded. So, this Court had been moved in W.P.(C) No. 1438 of 2009. Said application with another application numbered as W.P.(C) No. 5737 of 2009 have been disposed of by a common order dated 25.02.2015. For proper appreciation at this stage, it may also be stated that in that very Execution Proceeding, the local Gram Panchayat through its Sarpanch had filed an application to protect their possession in respect of the land under Plot No. 685 measuring an area of Ac.3.59 decimals asserting their claim upon the purchase by registered sale deed dated 08.06.1976 from one Khageswar Mohanta for valuable consideration. So they sought for the protection as the bona fide purchaser for value from that Khageswar asserting possession as such since their purchase and by putting up construction of the office building over there with the funds of the Gram Panchayat. So, the above noted W.P. (C) No. 5737 of 2009 had been filed by said Gram Panchayat which stood disposed of as aforesaid. 4. Those two applications were disposed of by this Court after taking note of some admitted facts and accordingly giving necessary direction to the Executing Court. It is felt apposite to reproduce that relevant paragraphs of the order:- “xx xx xx xx xx xx 10. In course of argument it was stated that the parties to the suit have entered into the compromise and they have agreed to take eight annas share out of 102.09 acres of land under Khata No. 27 and so far as 10.20 acres under Khata No. 6 is concerned the defendants will be in possession the same. So far as 5.65 acres under Khata No. 1 is concerned plaintiffs will be in possession of Plot Nos. 229, 230, 232 and 233 and so far as 15.04 acres under Khata No.31 is concerned both the parties are entitled to 8 anna each. The plaintiffs in possession of ‘C’ schedule property as per compromise and the possession of the parties will be intact. They will not disturb in respect of their possession. 229, 230, 232 and 233 and so far as 15.04 acres under Khata No.31 is concerned both the parties are entitled to 8 anna each. The plaintiffs in possession of ‘C’ schedule property as per compromise and the possession of the parties will be intact. They will not disturb in respect of their possession. However while carving out the share and allotting the properties to the respective parties by the Commissioner in the final decree proceeding the Commissioner has not taken into consideration the possession of respective parties due to death of petitioners father Ganeswar Mahanta in the month of October, 1985. Civil Court Commissioner submitted his report thereafter which was accepted in the final decree and decree was sealed and signed on 4.2.1986. 11. In view of the aforesaid undisputed facts this Court remits back the matter to the court below to consider the possession of the respective parties as per the compromise entered into by them and their possession is to be kept intact. It is open to the parties to produce the materials before the court below regarding the respective possession of the properties.” 5. Above order of this Court was challenged by the Executant-applicants by filing the Special Leave Petition before the Hon’ble Apex Court. The Hon’ble Apex Court has dismissed the SLP, finding no reason to entertain the same. The Executing Court was directed therein to dispose of the C.M.A. No. 05 of 2005 arising out of Execution Case No. 22 of 1994 within two months from the date of receipt of the order with the order of this Court dated 25.02.2015 holding the field. The impugned order dated 18.11.2016 has been passed thereafter. 6. This Court had finally directed the Executing Court to consider the possession of the respective parties as per the agreed terms under the compromise entered into by them so as to see that their possession remains intact in terms of said compromise. The Executing Court pursuant to the said order sat over the matter again and took up the exercise. The parties as directed produced the documents in support of their respective properties as per the compromise. The Executing Court pursuant to the said order sat over the matter again and took up the exercise. The parties as directed produced the documents in support of their respective properties as per the compromise. On receipt of those as is seen from the first paragraph of page-5 of the impugned order, the Executing Court has taken note of the facts:- (i) that after long lapse of time when the decree holder levied the Execution Proceeding to take the possession of the land specifically allotted to them in their possession, the objection has been filed; and (ii) that earlier there was a decision in MJC No. 67 of 1995. But then having ignored those as having no adverse impact, the challenge to the maintainability of said application under section 47 of the Code giving rise to the CMA No. 05 of 2005 has been repelled. The Court below is found to have taken note of the fact that the prayer made in the said petition under section 47 of the Code that has been filed for the second time is to declare the report of the Civil Court Commissioner as had been accepted in the final decree proceeding to be illegal and erroneous on the lone ground that Ganeswar Mahanta, the predecessor-in-interest of the petitioners who are the applicants of that petition under section 47 of the Code filed for the second time had no opportunity to challenge the report of the Civil Court Commissioner and the allotment sheets annexed thereto as by the time the final decree was passed said Ganeswar was already dead and thereafter those petitioners had not been brought on record as parties till culmination of the proceeding. 7. The Executing Court has next gone to draw an inference from the order of this Court passed on 25.02.2015 in W.P.(C) Nos. 1438 and 5737 of 2009 as if this Court had expressed its displeasure in the matter of acceptance of the report of the Civil Court Commissioner. 7. The Executing Court has next gone to draw an inference from the order of this Court passed on 25.02.2015 in W.P.(C) Nos. 1438 and 5737 of 2009 as if this Court had expressed its displeasure in the matter of acceptance of the report of the Civil Court Commissioner. The inference as has been drawn finds mention in the second para of page 7 of the impugned order which run as under:- “ xxx xxx xxx xxx In obedience to the same both parties have submitted the schedule of the land out of the suit property in T.S. No. 29 of 1948 which are in their respective possession as per the compromise entered into by them in T.S. 29 of 1948. On careful scrutinization of the description of the schedule land mentioned in their respective schedule of the properties in comparison to that of the allotment sheets prepared by the civil court commissioner in final decree proceeding there are some discrepancy to that effect and the intention of the Hon’ble Court though there is no specific disclosure of the same but on careful reading of the judgment dated 25.2.15 passed in W.P.(C) No. 1438 and 5737 of 2009 in toto, it is cogent and clear that Hon’ble Court has been displeased to accept the report of the civil court commissioner submitted in the final decree proceeding in T.S. 29 of 1948 for which this dispute is dragging on in between their successor since more than six decades. xxx xxx xxx xxx xxx” 8. Be that as it may, the Executing Court has thereafter held that since said Ganeswar Mahanta died after submission of the report by the Civil Court Commissioner and before its acceptance, the final decree is nullity as had been passed against a dead person without bringing his legal representatives on record as parties. It may be stated here that the Civil Court Commissioner submitted his report on 24.06.1985. The parties were called upon to file their objection to the same, if any. The matter rolled on like that till 04.02.1986 when the report was finally accepted as no objection came to it after grant of seven adjournments in between. Ganeswar died sometime in October, 1985. The parties were called upon to file their objection to the same, if any. The matter rolled on like that till 04.02.1986 when the report was finally accepted as no objection came to it after grant of seven adjournments in between. Ganeswar died sometime in October, 1985. So it is after submission of the report of the Civil Court Commissioner but before acceptance of the said report where there remained the gap of about four months with the facts standing on the score that objection to the same being invited, no such objection had been filed by said Ganeswar. More so, the legal representatives of Ganeswar who are parties to the very Execution Proceeding had not made that complain at any time till they filed the application under section 47 of the Code in the year 2005, thus having maintained complete silence for more than a decade. In the above state of affair, the Executing Court has said that the final decree passed in the absence of the legal representatives of Ganeswar is nullity by leaving it at the option of the parties to initiate the final decree proceeding afresh if so they desire. 9. For better appreciation of the matter, the final order of the Executing Court in the said CMA No. 05 of 2005 is reproduced herein below:- “ ORDER. (18.01.2016) The CMA No. 5 of 2005 is disposed accordingly and the report submitted by the Civil Court Commissioner dated 08.04.1985 in T.S. No. 29 of 1948 is not accepted and declared as nullity. The petitioners are at liberty to prefer a separate final decree proceeding in respect of all the landed properties in T.S. No. 29 of 1948 as per the compromise entered into by them in preliminary decree by including all the successors/legal heirs of the respective parties in T.S. No. 29 of 1948 and the persons who have accrued their interest in between since 65 years of the initiation of the proceeding like T.S. No. 29 of 1948 by keeping in mind the guide lines enumerated by Hon’ble Court in para-10 of the judgment dated 25.02.2015. xx xx xx xx xx” (Emphasis supplied) 10. After the above order in the CMA, the following order has been passed in the Execution Case No. 22 of 1992 on 27.01.2016:- “Advocate for both the contesting parties are present and filed their respective haziras. Learned counsel for the Dhrs. xx xx xx xx xx” (Emphasis supplied) 10. After the above order in the CMA, the following order has been passed in the Execution Case No. 22 of 1992 on 27.01.2016:- “Advocate for both the contesting parties are present and filed their respective haziras. Learned counsel for the Dhrs. Did not file the consolidated execution petition nor take any steps against the substituted parties. However, in view of the order dated 18.01.2016 passed in CMA No. 5 / 2005 arising out of this case and direction of the Hon’ble Court in W.P.(C) No. 1438 /2009 the report dtd. 08.04.1985 submitted by the Civil Court Commissioner in final decree proceeding in T.S. No. 29/48 is found to be non contest as i.e. not in accordance with the compromise submitted during the preliminary decree is nullity, as the final decree has been drawn/passed against dead person without substitution of his L.Rs. (A.I.R. 1961 Orissa 140). Hence, allowing this execution proceeding on the basis of the report of the Civil Court Commissioner which is not in existence as per law to continue further shall cause prejudice to all the parties. Accordingly, this execution proceeding is dropped. It is further directed through this order that any possession delivered during pendency of this Execution Case No. 22/1994 in favour of either parties or outsiders on the basis of their claim shall be kept intact till disposal of the final decree proceeding in T.S. No. 29/48 and preferring separate execution proceeding arising out of T.S. No. 29/48. ” 11. I have heard learned counsel for the present petitioners and the learned counsel for the opposite parties 1 to 6, 8 and 10 at length and have gone through the order impugned in the present proceeding before me as well as the final decree, the order in MJC No. 67 of 1995 and other necessary materials needing reference. 12. A careful reading of the said order, reveals that the Executing Court from the very beginning was aware of the duty required to be performed by it pursuant to the direction given by this Court in W.P.(C) Nos. 1438 and 5737 of 2009 disposed of together which received the seal of approval from the Hon’ble Apex Court. 12. A careful reading of the said order, reveals that the Executing Court from the very beginning was aware of the duty required to be performed by it pursuant to the direction given by this Court in W.P.(C) Nos. 1438 and 5737 of 2009 disposed of together which received the seal of approval from the Hon’ble Apex Court. The direction was to consider the possession of the respective parties as per the compromise entered into by them and keep their possession intact which obviously means that said possession be in terms of compromise as recorded. Having clearly noted the aforesaid direction, the Executing Court although was aware that earlier a challenge to the executability of the final decree under section 47 of the Code had been rejected and the order passed therein thus has attained finality, it has further proceeded in the matter winking at the directions of this Court and as is seen feeling in no way fettered in finally holding the final decree to be nullity and as such not executable that apart by upsetting the acceptance of the report of the Civil Court Commissioner and saying that its thus not accepted. The ordering portion as supplied with emphasis is very clear on that aspect. 13. Firstly said course was not available to the Executing Court at that stage and therefore, it had no jurisdiction to sit over to decide the question of executability of the final decree on that score. There being an earlier challenge to it on that ground and that having been overruled, the matter touching that aspect had reached its finality. Furthermore, it was well within the notice of this Court while disposing the W.P.(C) No. 1438 and 5737 of 2009. This fact though clearly finds mention in the order itself, was not given any such importance finding it to have no further legal impact for having been earlier overruled. The remand was on a limited point to find out the possession of the parties in respect of the different portions of the land and with a view to keep those intact in terms of compromise. The remand was on a limited point to find out the possession of the parties in respect of the different portions of the land and with a view to keep those intact in terms of compromise. Said direction was particularly in view of the compromise that had taken place long back and more so in view of the submission made at the Bar that the parties have been continuing to enjoy the properties as such which status has been continuing to be maintained as such stretching over a long period. Thus, it is seen that by passing the impugned order, the Executing Court has completely acted beyond the bounds of its authority and without following the direction of this Court which is not appreciated. The discussions as made therein are seen to be in conflict with the final order on one part or the other and confusion looms large going to play a good influencing factor. The Executing Court when has gone to say that after submission of the report of the Civil court Commissioner despite number of adjournments, none of the parties raised any objection and so the same had been accepted; but then as Ganeswar had died before acceptance of the report of the Civil Court Commissioner without filing any objection after submission of the report till his death, it has ultimately taken that to be the sole ground to hold the final decree as nullity and thus has refused to execute the same by dropping the Execution proceeding. 14. The Executing Court had absolutely no authority to pass the order on those reasonings. This Court in disposing the applications while remitting the matter had never held so and had it been even kept in mind for any consideration or given any weightage, no direction would have been given for further examination relating to the possession of the land by the parties. In fact that aspect was found to be in no way impacting the matter in hand at that stage. The order of this Court was not at all with any such expression of displeasure in acceptance of the report of the Civil Court Commissioner as has been erroneously so inferred by the Executing Court which is impermissible in the absence of any ambiguity in the operating part. It is an expression of the position in consideration of the admitted position as per the submission. It is an expression of the position in consideration of the admitted position as per the submission. The consideration that had weighed in the mind of this Court was as to the possession of the parties as per compromise and to keep those in tact in terms of that in view of prevalence of that state for long as contended by the parties. Above point was thus not open to be raised at the stage of the Execution without there being any challenge to the final decree by carrying an appeal as provided in law to redress that grievance. By passing such order, the Executing Court has thus clearly travelled beyond the circumference prescribed by furthering its diameter attempting to create a greater circle which has infact been made non-existent by declaring the final decree nullity which was once earlier refused to be so declared on that very ground on a prior application under section 47 of the Code in presence of the petitioners of the subsequent application under section 47 of the Code. The said way of disposal of the matter is seen to be a method lastly evolved by the Executing Court with a bid to smartly avoid the directed exercise somehow sprinkling a legal fragrance from the potpourri. This order can be termed to be an order reviewing the earlier order passed in MJC No. 67 of 1995 arising out of an application under section 47 of the Code. It may be stated here that in that MJC, these petitioners of CMA No. 05 of 2005 were the opposite parties and had maintained sphinx like silence without any demur in that proceeding, nor they had then filed any separate application under section 47 of the Code. The order in that MJC is the following:- “xxx xxx xxx xxx The Commissioner report submitted before the death of plaintiff no. 3 i.e. on 24.06.1985 and case adjourned for times for objection but none file objection. As plaintiff no. 3 died other plaintiffs should have taking steps to bring his L.Rs on report or his L.Rs to come suo-motu to fight out the case started by their father. Therefore, it cannot be said that non-substitution of L.Rs of plaintiff no. 3 i.e. on 24.06.1985 and case adjourned for times for objection but none file objection. As plaintiff no. 3 died other plaintiffs should have taking steps to bring his L.Rs on report or his L.Rs to come suo-motu to fight out the case started by their father. Therefore, it cannot be said that non-substitution of L.Rs of plaintiff no. 3 is fatal and final decree is nullity and the decree is not executable.” The decision in that regard in MJC No. 67 of 1995 clearly operates as resjudicata in view of Explanation VII to section 11 of the Code as inserted by CPC Amendment Act, 1976. Even before the amendment, the principle of resjudicata was applicable to the Execution proceeding. In a proceeding for Execution, once notice is issued to the judgment debtor requiring him to show-cause as to why the decree would not be executed against him, the judgment debtor has to raise all his objections to the executability of the decree. If even at that stage, he fails to raise any objection which he might or ought to have raised, the Court is passing the orders for execution of the decree is deemed to have decided that objection against him. Raising of one objection after the other by filing successive applications under section 47 of the Code is forbidden under the law as well as the public policy being kept in view in engrafting the legal provisions which frown upon said recourse. Moreover, in this case said Ganeswar @ Ghanashyam was the plaintiff no. 3 with two others as plaintiffs and was one of the applicants in that final decree proceeding. This being the order, there was no further complaint by the legal representatives of Ghanashyam @ Ganeswar. This was never raised by those legal heirs who now come to complain in CMA No. 05 of 2005. 15. At this juncture, I feel it also the need to deal with the question of final decree being nullity as having been passed, when one of the parties by then was dead and that too without bringing his legal representatives on record as has been held by the Executing Court and consequentially examine its sustainability even on merit. The suit being one for partition, the same remains pending till passing of the final decree. The suit being one for partition, the same remains pending till passing of the final decree. The suit being thus on the Board after passing of the preliminary decree, an application for final decree is not like an Execution proceeding, but is an application in the pending suit. The settled position of law is that after the Court issues Commission to the Civil Court Commissioner to make partition or separation according to the rights declared in the preliminary decree, the Commissioner shall after such enquiry as may be necessary divide the property into as many as shares as may be directed by the order under which the Commission was issued and shall allot such shares to the parties and may if after authorized thereto by the said order, award the sums to be paid for the purpose of passing the value of the shares. The Commissioner then has to prepare and sign the report which shall be annexed to the Commission and transmitted to the Court. The Court next after hearing the objection which the parties may make to the report shall confirm, vary or set aside the same. In case the Court confirms or varies the report, it shall pass the decree in accordance with the same as per confirmation or the variance as the case may be. In case it sets aside the report, it shall issue new Commission or make any such other order as it deems fit. The mandate of law is that after Commissioner submits its report, the parties be given the opportunity to have their say over the matter and to file the objection for acceptance of the same, if any, for its variance to any extent or for being discarded. So after receipt of the report, objections are invited from the parties so as to finally consider the matter relating to acceptance, variance or for it being set aside. So after receipt of the report, objections are invited from the parties so as to finally consider the matter relating to acceptance, variance or for it being set aside. As the position of law stands that the provision contained under rules 3,4 and 8 of order 22 of the Code as regards to the abatement of the suit on account of death of several plaintiffs or of sole plaintiff and death of several defendants or of sole defendant, do not have any application to the proceeding in the Execution of a decree or order and as per the Orissa High Court Amendment, the same have also no application to the proceeding before the original court taken after passing of the preliminary decree, regard being had to the nature of the suit. Therefore to the final decree proceeding such provision contained under orders 3 and 4 rule 22 of the Code do not apply and thus though it’s a pending suit, there arises no question of the suit’s abatement on failure to bring the legal representatives of the deceased party on record. But it has been the settled position of law that there cannot be any legal sanction to the final decree proceeding to continue without representation of a deceased party whose interest is likely to be affected. The above need and purpose of bringing the legal representatives of the deceased party on record in final decree proceeding is only with a view to afford them the opportunity of having their say over the effective working out of the preliminary decree as ordained which is otherwise to have a say on the actual division of the property so far as the partition is concerned. It is thus with a view to raise their objections to the report of the Commissioner appointed to make division of the properties and allot the parties their shares as found entitled under the preliminary decree or with the subsequent changes on account of any such happening of event thereafter to taken cognizance of in the matter and to oversee that the division is in consonance with the preliminary decree. At this moment, it may be kept in mind that the requirement of substitution of deceased party in a suit or appeal does no more stand as the legal need if death has taken place after conclusion of the hearing and pronouncement of the judgment. At this moment, it may be kept in mind that the requirement of substitution of deceased party in a suit or appeal does no more stand as the legal need if death has taken place after conclusion of the hearing and pronouncement of the judgment. The provision of law is very clear that the judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if being so pronounced before the death had taken place. This obviously leads to say that the legal representatives of said deceased party cannot complain for having not been provided with the opportunity to participate in the suit or the proceeding, the simple reason being that after the conclusion of the hearing, the legal representatives could have done nothing more as their predecessor-in-interest had all the opportunities to do so and then either he had done or has chosen not to, which accordingly goes as the acts or deeds of said legal representatives. So in that event they are precluded in that way. The whole objective is to prevent unnecessary protraction of the lis serving no such useful purpose and not to provide further handle to the legal representatives to reopen the lis viewing the stage and their conduct. 16. I may now refer to the following decisions of this Court in the field which are - (i) Jagannath Samantray v. Sudarsan Das, AIR 1961 Orissa 140, (ii) Sudarsan Panda & others v. Laxmidhar Panda & others , AIR 1983 Orissa 121, (iii) Saria Bewa v. Balaram Puhan and others, 1989(1) OLR 571, (iv) Jitendra Ballav Burdhan v. Dhirendranath Burdhan & others, AIR 2004 Orissa 148. The correctness of the decision in case of Jagannath Samantray (supra) had come to be examined by the Division Bench of this Court in view of divergence of the judicial opinion as to whether any substitution is required to be made on the death of a party after passing of the preliminary decree and if the final decree passed would be for that reason nullity for which the Executing Court can refuse to execute such decree. This had came up before the Division Bench in the case of Saria (supra). Prior to that, the matter had arisen before the learned Single Judge in case of Sudarsan Panda and others (supra). This had came up before the Division Bench in the case of Saria (supra). Prior to that, the matter had arisen before the learned Single Judge in case of Sudarsan Panda and others (supra). Jagannath Samantray’s case (supra) was prior to the amendment carried out in the Code by Act 104 of 1976 coming into force with effect from 01.02.1977 and then the Orissa High Court Amendment was very much there. This provision of the Code under order 22 rule 12 did not undergo any change in the said amendment. Therefore, it has been said by the Division Bench of this Court in case of Saria (supra) that the said amendment remains effective after the Code was amended by Act 104 of 1976. 17. In the case of Jagannath Samantaray (supra) it has been held in a suit for partition after the preliminary decree has been passed determining the rights and interest of the parties in relation to the subject matter, the said suit continues to remain as a pending suit and the rights of the parties who are added after the preliminary decree, have to be adjusted at the time of final decree. So at the stage of final decree when the rights of the parties have to be adjusted as per the preliminary decree, opportunities should be given to the legal representatives of the deceased party to agitate their rights. In case of any controversy as to such rights, it is at that stage open to them to present their case before the final decree is passed. That was a case where though the general question had been formulated as to if a final decree passed against a dead party is nullity, yet the fact situations were that after filing of the application for final decree on 24.04.1950, the defendant no.2 died on 18.11.1950 and the defendant no.1 died on 26.08.1954. The final decree was passed on 15.12.1954 when the legal representatives of those above named defendants were not on record. For that reason one of the defendants had filed an application under order 9, rule 13 of the Code for setting aside the final decree passed in the partition suit. The application was dismissed. The final decree was passed on 15.12.1954 when the legal representatives of those above named defendants were not on record. For that reason one of the defendants had filed an application under order 9, rule 13 of the Code for setting aside the final decree passed in the partition suit. The application was dismissed. In that event, this Court being in seisin of the matter in an appeal against the order of dismissal of the application under order 9 rule 13 of the Code came to the conclusion that when the law expressly provides that sufficient opportunity must be given to the parties to file objection to the report of the Civil Court Commissioner before the final decree is passed, in that case, the legal representatives of those two defendants who died during the final decree proceeding having not been brought on record, there had remained nobody to file objection, if any, on behalf of those deceased-defendants. So, the Court found it to be clearly against the principle of natural justice as the rights of the parties determined under preliminary decree have been further adjudicated in their absence and after their death in the absence of their legal representatives, thus depriving them of the opportunities to place their case either as to their rights or filing any objection, if any, to the report of the Civil Court Commissioner. In that view of the matter, the final decree had been held to be nullity. 18. In case of Sudarsan Panda (supra) this Court held relying upon the decision in case of Jagannath Samantray (supra) and the decision of High Court of Karnataka in case of Shivaramiah v. Mallikarjunaiah, AIR 1978 (Karnataka) 76 that the final decree proceeding does not originate in itself, but follows a preliminary decree already passed in a suit determining the rights and interest of the parties in relation to the land. The final decree proceeding is only to enforce what has already been decided and decreed and does not relate to a decision of the substantive rights of the parties. But it cannot be said that the legal representatives of the deceased party in a partition suit have no locus standie or that they cannot legally make their application for a final decree in accordance with the shares determined in the preliminary decree. But it cannot be said that the legal representatives of the deceased party in a partition suit have no locus standie or that they cannot legally make their application for a final decree in accordance with the shares determined in the preliminary decree. With that view in that case where the legal representatives of one of the defendants had filed the petition for making preliminary decree final, the objections made by the adversary that it was barred by limitation and that legal representatives have no locus to initiate the final decree proceeding have been overruled. This had been rendered on a completely different setting of facts. 19. In case of Saria (supra), the facts situations are like this. The plaintiff filed the petition to make preliminary decree final. The Commissioner was appointed under order 26 rule 13 of the Code to carry on the measurement in order to make partition of the properties according to the rights as declared in the preliminary decree. The Commissioner submitted his report on 21.12.1976. Shortly prior to that submission of the report, one of the defendants had expired on 04.11.1976. The report having later on being accepted, the final decree had been passed. When said final decree was put to execution, it was resisted to be so executed by filing an application under section 47 read with Order 21, Rule 23 of the Code. One of such objections was for one of the defendants having died on the date of the final decree without substitution of the legal representatives; the final decree so passed being against a dead man, was thus, nullity. The Division Bench of this Court first held that the suit had not abated by virtue of non-bringing of the legal representatives of said defendant on record. The question next came up for answer as to when the suit has not abated as a consequence of non-substitution of the legal representatives of a deceased party, the final decree so passed in the said suit would be nullity or it would be a valid decree capable of being executed. It has been held that a suit for partition and some other category of suits stand on a different footing. It has been held that a suit for partition and some other category of suits stand on a different footing. In a suit for partition the Civil Procedure Code provides that the Court may pass a preliminary decree declaring the rights of the parties interested in the property and giving such further direction as may be required if it finds that the partition or separation cannot be conveniently made without further enquiry. Law is well settled that even though a preliminary decree is passed in a suit for partition, it is still a pending suit in which the Court is to pass a final decree after making necessary enquiries, though it is conclusive and final so far as the matters dealt with by the Court are concerned. After the passing of the preliminary decree, each of the parties, whose right and interest to the property have been declared therein, continues to be a party in the suit in the final decree proceeding and is entitled to take part in the further enquiry to be held by the Court in the matter of actual partition by metes and bounds with the help of the Commissioner or otherwise. In other words, even after the passing of the preliminary decree each of the parties to the suit has a right to contest the final decree proceeding, the scope of which may extend to object to the manner of division, valuation of the properties or any adjustment which might be expedient either on account of subsequent developments or otherwise. Therefore, even though the rules of the Civil Procedure Code with the Amendment of Orissa High Court specifically provide that there shall be no abatement of the suit on account of non-substitution of the legal representatives of a deceased-defendant, it cannot be further stretched to mean that the legal representatives of such defendant are not necessary parties to the proceeding. It then proceeded to examine the decisions relied upon by the learned trial court in the aforesaid back ground. Finally in that case when the final decree had been passed against a dead party in absence of his legal representatives, the same was held to be nullity. In that case before the submission of the report by the Commissioner the party had died. Finally in that case when the final decree had been passed against a dead party in absence of his legal representatives, the same was held to be nullity. In that case before the submission of the report by the Commissioner the party had died. So there was no occasion for the deceased party to have his to say over the said report which should have been so provided to his legal representatives by bringing them on record. They have not got said opportunity as they were not brought on record as parties and the report was accepted behind their back violating the basic principles of natural justice. 20. In other case of Jitendra Ballav Burdhan (supra), the facts and circumstances are that:-the final decree proceeding was initiated and the preliminary decree proceeding was made final on 29.01.1996. The first appeal was then pending and later had been withdrawn. On 26.07.1997, on account of death of one of the defendants, there had been the prayer in the final decree proceeding for substitution of his legal representatives. Notice have been issued and the service was sufficient. But thereafter though the final decree was passed on 29.01.1996, there was no order in bringing those legal representatives of the deceased-defendant as parties to the said proceeding. Said defendant though had not contested the suit, was given 1/5th share jointly with four other defendants. The objection was raised in the Execution proceeding that the final decree having been passed against a dead man, the same is nullity. In that case Commissioner had allotted 1/5th share in favour of those defendants jointly and the legal representatives of said defendant had no such occasion to have their say over it. Further the legal representatives of deceased party had no scope even to go through the report of the Commissioner and offer their views if any. The learned Single Judge in that case relying upon the case of Saria (supra) and without relying upon the view taken in another case of Gobind Chandra Tripathy v. Rama Chandra Tripathy reported in 1998 AIHC 1814 wherein it had been held that in those cases question that matters is that of prejudice; held the final decree to be nullity. 21. In none of the above cited cases, the fact situations are like the present one which rests on a completely different factual settings. 21. In none of the above cited cases, the fact situations are like the present one which rests on a completely different factual settings. Here the party was alive when the Commissioner submitted the report and though he had the opportunity to file the objection, had not done so. The trial court therefore having no further option proceeded without such objection from that party to pass the final order by acceptance of the report overruling others objection and finding the said report to be in consonance with the preliminary decree. 22. In the instant case, even though the legal representatives of said deceased party would have come on record, they had no further right to file objection as their predecessor-in-interest had not so chosen to do. Keeping in view the facts and circumstances, in the given situation, the Court therefore even was within the rights to exempt the applicant from bringing those legal representatives on record and that in my view can be so presumed to have been granted in some such eventuality. Such grant of exemption as provided in order 22 rule 4(4) of the Code is in exercise of the discretion resting with the court in suit and appeal or proceeding like that, but in view of the fact that final decree proceeding, does not abate for non-substitution of the legal representatives in place of deceased party, the court in the attending facts and circumstances has no such option left with it and tied down to grant the exemption, yet even in the absence of a specific order, such exemption has to be deemed to have been so granted when the presence of legal representatives of the deceased party would have been like that of onlookers and nothing more, no participation being permissible. Thus there cannot be an general declaration that in every case where final decree has been passed against a dead party without bringing his legal representatives as parties on record is nullity. Thus there cannot be an general declaration that in every case where final decree has been passed against a dead party without bringing his legal representatives as parties on record is nullity. That position which is generally said in dealing with the question has to undergo dilution in the sense that such a declaration would emerge where the deceased party had no opportunity to file the objection to the report of the Commissioner either being dead prior to the submission of the report or having been granted time to file the objection died during the period so granted to file objection, where the legal representatives stepping into the shoes of the deceased party are required to be so provided with the opportunity. But where the deceased party had not filed the objection being given with the opportunity or was not in the waiting to file the objection being given time for that, in that situation, the legal representatives’ mere presence would not have mattered either anything to their advantage or when their absence cannot be said to have been to their disadvantage. More importantly, the legal representatives of that deceased party are under legal obligation to object to that final decree at the earliest opportunity on their appearance thereafter in the subsequent proceeding but not at the time decided at their wish and desire. Therefore, the final decree passed in those eventualities cannot be said to be nullity for having merely been so passed against a dead person. Thus with due regard and respecting the ratios decided in the aforecited cases (supra), exceptions as aforesaid are culled out of that general declaration that final decree passed against a dead person is nullity only in those above described situations where the Court feels that there has been deprivation of the opportunity as provided in law and the complaint to that effect is made at the earliest opportunity by the legal representatives of the deceased party. It may however be also stated here that even if a party was not contesting in the suit for partition and is dead, if he has been allotted with a share, the opportunity has to be provided to the legal representatives of said party to participate in the enquiry which relates to the division as per the preliminary decree where the party through whom they claim the rights and interests either was not given the opportunity to have his say or being in the waiting to do so, having died could not so avail the opportunity when no fault can be attributed to the said deceased party and when his legal representatives come to know about it being noticed in any subsequent proceeding, they raise that issue to thwart the final decree so passed. 23. In the wake of aforesaid, this Court finding all the legal justifications hereby unhesitantly quashes the order dated 18.01.2016 passed by the learned Civil Judge (Senior Division), Keonjhar in CMA No. 05 of 2005 arising out of the Execution Case No. 22 of 1994 as well as the consequential order dated 27.01.2016 passed in the Execution Case No. 22 of 1994 and the matter is thus remitted to the learned Court below to dispose of the CMA following the directions of this Court in its order dated 25.02.2015 passed in W.P.(C) Nos. 1438 and 5737 of 2009 within a period of three months to be computed with effect from 01.08.2017 when the parties are directed to appear before the said Court to receive necessary instruction and to cooperate in the disposal of the proceedings in accordance with law. 24. The application is accordingly disposed of. There shall however be no order as to cost.