G.B. Patnaik, J.
1. This revision is directed against the order dated 13-5-1982 of the District Judge, Cuttack, rejecting the petitioner's application to be brought on record.
2. One Bai Bewa filed Title Suit No. 201 of 1976 in the court of the Munsif, First Court, against Jayakrishna Routray for cancellation of two sale deeds which were alleged to have been taken by Jayakrishna from her exercising fraud and misrepresentation. The suit was decreed by the learned Munsif and the two sale deed were declared as null and void. On 15-9-1978 Javakrishna preferred an appeal against the judgment and decree of the learned Munsif which was numbered as Title Appeal No. 106 of 1978. The appeal was dismissed for default and an application for restoration of the appeal was filed which was numbered as Miscellaneous Case No. 72 of 1981. During the pendency of the miscellaneous case in the court of the District Judge, Cuttack. Bai Bewa died on 19-11-1981. After the death of Bai, in affidavit was filed by the clerk of the Advocate who was representing Bai in the court of the District Judge intimating the death of Bai and also the fact that Bai left Sukanta (the present petitioner) as her heir being the adopted son. But notwithstanding the said intimation. Jayakrishna, the appellant in the title appeal and also the petitioner in the miscellaneous case, filed an application for substitution of Bai through her daughter one Dukhi Bewa and the prayer for substitution was allowed. The miscellaneous case was also allowed and the title appeal was restored to file. Thereafter, the present petitioner coming to know about this filed an application before the learned District Judge purporting to be one under Order 1. Rule 10 of the Civil P. C. alleging that he was the adopted son of deceased Bai Bewa and was, therefore, entitled to continue the proceedings and should be impleaded as a party to the appeal. It was also stated in the said petition that between the parties some proceedings were continuing under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act and in those proceedings the petitioner had been substituted in place of his adoptive mother deceased Bai Bewa and the appellant Jayakrushna being fully aware of the same intentionally did not substitute him in the appeal. In support of his assertion of adoption, it was indicated that Bai Bewa had executed a deed acknowledging adoption some time on 29-8-1980. This application of the petitioner was seriously objected to by Jayakrushna and the learned District Judge by the impugned order rejected the application filed by the petitioner.
3. The learned District Judge was of the opinion that an application for substitution under p. 22 of the Civil P. C. was not maintainable beyond the period prescribed under the Limitation Act and since the application was filed beyond the said period, the same was not entertainable. He was also of the opinion that since the appellant did not choose to substitute the petitioner and the petitioner was not a party to the suit, it would not be open, for him to raise any objection. He also considered the question as to whether the application could be allowed under Order 1, Rule 10 of the Civil P. C. and after discussing the provisions of the Code, came to the conclusion that in the context of deciding whether the sale deed executed by deceased respondent was a fraudulent transaction or not and, therefore, not binding on the deceased, the presence of the petitioner was not necessary for effective and complete adjudication. The learned District Judge was of the opinion that by allowing the petitioner to be impleaded as a party would alter the nature and character of the suit since the alleged adoption of the petitioner by deceased Bai would have to be decided upon.
4. Mr. B.H. Mohanty, the learned counsel for the petitioner, in this revision combats the aforesaid conclusions of the learned District Judge and submits that in view of the provisions of Rule 5, Order 22 of the Civil P. C. it was incumbent on the District Judge to enquire into the allegation of adoption of the petitioner by Bai and if on enquiry the court was satisfied that the petitioner was the adopted son, then the court must allow his application to be impleaded as a party, as the successor of Bai. The learned counsel further urged that the conclusion of the District Judge that allowing petitioner to be impleaded as a party would alter the nature and character of the suit as wholly untenable. In support of his submission, the learned counsel placed reliance on a decision of this Court in Sitaram Beura v. Birakishore Beura, AIR 1977 Orissa 65.
5. On behalf of the opposite parties, two sets of submissions were made practically on the same line. Mr. S. Misra appearing for Jayakrushna (the appellant in the title appeal) submitted that the period of limitation for an application under Order 22 was governed by Article 120 of the Limitation Act and after expiry of the said period no application was entertainable. He also supported the conclusions of the learned District Judge that Order 1, Rule 10 of the Civil P. C. had no application in such contingency. Mr. Mohanty appearing for the substituted heir namely, the alleged daughter of Bai also reiterated the submissions made by Mr. Misra and further added that applying the principle of dominus litis, it was the option of the appellant to substitute the deceased respondent and if he did not choose to substitute one of the heirs of the deceased-respondent, the said heir could not be brought on record.
6. In my opinion, the, said contention of the learned counsel for the opposite parties is devoid of merits. The controversies between the parties can be resolved by perusing the provisions of Order 22 of the Civil P. C. Rule 5 of Order 22 provides that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the court. The proviso to the said rule is to the effect that where such question arises before an appellate court, then the appellate court may direct any subordinate court to try the question, and return the records together with evidence along with, its findings and reasons therefor and the appellate court will take a final decision after considering all the records. The said provision unequivocally casts an obligation on the court to determine the question if it arises as to whether a particular person is or is not the legal representative of the deceased plaintiff or defendant as the case may be. In fact, in Sitaram Beura's case (AIR 1977 Orissa, 65), it has been held that if a dispute is raised as to whether any person is or is not the legal representative of the deceased party, it should be judicially determined by the court under Order 22, Rule 5 of the Civil P. C. In that particular case, on the death of a party substitution was ordered under Order 22, Rule 3 without noticing all the Parties and suppressing some material facts. When a petition was filed by a rival claimant claiming to be the legal heir, a dispute was raised as to who was the legal representative of the deceased and, therefore, this Court held that it was incumbent upon the court to have an enquiry as contemplated under Order 22, Rule 5 of the Code. In my opinion, the aforesaid decision lays down the correct position of law. The duty that is cast on the court to have an enquiry in case of a dispute as to the legal, representatives of a deceased plaintiff or a deceased defendant cannot be shirked by the court on the plea that the nature of the suit will be altered. I fail to understand how the nature of the suit will be altered in any manner by embarking upon an enquiry as to who is the legal representative of deceased Bai Bewa. In my opinion, the learned District Judge failed to exercise jurisdiction vested in him by law in not enquiring into the matter and by rejecting the application on the ground that the nature of the suit will be altered. The learned District Judge on receiving the application filed by the present petitioner should have determined the question whether the petitioner is the adopted son of deceased Bai or not either himself or by directing any subordinate court to try the question and return the records to him, together with the evidence, if any, along with the findings and reasons therefor. The approach of the learned District Judge in disposing of the application filed by the petitioner, in my view, is a hypertechnical approach which if carried to end may result in miscarriage of justice. If ultimately it is found that the petitioner is the adopted son of deceased Bai Bewa. then the said petitioner can make the most serious grievance that on the failure of the appellant to substitute him. the appeal itself would not be maintainable. He can contend that the appeal as against him has abated and.1 therefore, the finding of the trial court so far as he is concerned must stand and in such a case if he files an application to be brought on record and Pursue the litigation, even beyond the period of limitation, neither the appellant nor the substituted heir can possibly have, any grievance on that score. In this view of the matter, I set aside the order of the District Judge dated 13-5-1982 and direct that he would do well to exercise his powers under Rule 5 of Order 22 of the Civil P. C. and determine the question as to whether the petitioner is the legal heir of deceased Bai Bewa being the adopted son, or not. Such determination can be made by the District Judge by taking evidence himself or he may take recourse to the proviso to Rule 5 and ultimately determine the Question himself.
7. The Civil Revision is accordinglyallowed. There shall be no order forcosts in this Court.