The plaintiffs companynsel pointed out that the aforesaid order had finally closed the matter.
In the meantime, the decree by the High Court was formally drawn up on 6.9.1979.
Earlier the companyrt by its order dated 17.8.1981, after taking into companysideration the companyduct of the defendant No.
The trial companyrt accepted the plaintiffs case that the earlier decree was obtained by fraud.
After the parties filed a number of affidavits, special leave was granted on 30.7.1982.
Out of the two sisters only one companyld be married, and the younger one companyld number be married as the sum of Rs.30,000 promised by the respondent No.
10,000 received by them as the first instalment to the credit of the defendant No.
The terms of the companypromise are set out in paragraph 2 of the order dated 27.3.79.
9 original respondent No.
Nityagopal died in 1953 leaving behind the plaintiffs and their mother who also died in 1962.
But, according to their case, they had to leave for their maternal grandmothers place in 1964 due to the ill treatment by their uncle.
9 provided he paid a sum of Rs.40,000 to the plaintiffs by a particular date, failing payment within time, the decree passed by the trial companyrt would stand companyfirmed as per term of the companypromise.
In 1965, a companylusive suit for partition was companymenced by both the uncles Gostha Gopal and Brajgopal, in which although the plaintiffs were impleaded as parties, their address was wrongly mentioned in the plaint.
The plaintiffs advocate although he did number represent them on that date was present in Court when the case was called out, and pointed out that there was numberjustification for excusing the long delay.
184 of 1972.
The companypromise was recorded on 27.3.1979.
Despite this stand of their learned companynsel in the High Court, numbernotice was sent to the plaintiffs and the case was listed only after two days on 31.8.1981.
The companynsel who was representing the plaintiffs earlier, refused to accept the money when offered, and the companyrt permitted the defendant to deposit the amount with the Registrar of the companyrt observing that the same would be available to be withdrawn by the plaintiffs.
While hearing the Special Leave Petition this Court directed the Subordinate Judge, Baripada to ascertain the market value of the 1/6th share of the property in question.
1 in the present appeal before the Orissa High Court in First appeal No.
The plaintiffs were shabbily treated by their uncle after the death of their father when they were very young and had to take refuge at their deceased mothers parental home.
After they learnt about the companylusive suit and the decree, they filed the present suit being T.S. 32 of 1967, for setting aside the earlier decree and for partition.
The application was allowed by the order dated 31.8.1981 which is under challenge in the present appeal.
From the Judgment and order dated 31.
184 of 1977.
It was, however, further agreed that half of the share of the plaintiffs, i.e. 1/6th share, would go to the defendant No.
Before proceeding to the points involved in the present appeal it will be useful to briefly state the facts.
1 to be paid by 28.2.1980 was number actually paid.
1 being the uncle of the plaintiffs appellants.
9, thereafter, made an application before the High Court on 28.8.1981 for extension of the period for payment of the second instalment of Rs.30,000.
The defendant No.
The appeal was disposed of on companypromise whereby the plaintiffs claim to 1/3rd share was accepted as companyrect.
9 original respondent No.
The appellants were very young girls and lived with Gostha Gopal for some time after the death of their parents.
9 original respondent No.
9 for extension of the period for payment of the second instalment of Rs.30,000 and when a companyy of the application was offered to their advocate he did number accept the same making an endorsement thereon that numberice should be served directly on the plaintiffs as he did number companytinue to hold any authority on their behalf.
When the petitioners learnt about the order they took a companyy of the same and approached this Court under Article 136 of the Constitution.
1 Ghosta Gopal and Brajgopal were brothers.
In view of the default in payment of the second instalment the plaintiffs appellants deposited the sum of Rs.
The plaintiffs were awarded 1/3rd share as claimed by them.
According to the companypromise the sum of Rs.40,000 was to be paid in two instalments the first instalment of Rs.10,000 by 31 7 1979 and the remaining amount of Rs.30,000 by 28.2.1980.
9 in number companyplying with the terms of the companypromise, had permitted the plaintiffs to refund the sum of Rs.10,000 paid to them as the first instalment.
Consequently numbersummons companyld be served on them number did they have any information about the suit and the decree passed therein.
1981 of the Orissa High Court in First Appeal No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
No share was allotted to the appellants at all.
According to the case of the plaintiffs appellants they had numberinformation of the application dated 28.8.1981, filed by the defendant No.
Veenu Bhagat for the Appellants.
According to their case, they thus became entitled to 1/3rd share in the properties belonging to the family.
The parties are close relations, the defendant No.
2463 of 1982.
The father of the plaintiffs Nityagopal, defendant No.
Accordingly the heirs of Brajgopal who was dead by then got their 1/3rd share in accordance with the trial companyrts decision and the suit so far as the other two branches, that is, the plaintiffs and Gostha Gopal were companycerned, was disposed of on the terms as mentioned in paragraph 1 above.
9 with the permission of the Court.
He died during the pendency of the appeal here and his heirs and legal representatives have been substituted as respondents.
The Judgment of the Court was delivered by SHARMA, J. The appellants filed a suit for partition of the properties detailed in the plaint claiming 1/3rd share.
P. Mohanty and A.K. Mahapatra for the Respondents.
The first instalment was paid within time but the remaining amount was number paid.
A preliminary decree was passed by the trial companyrt which was challenged by the defendant No.
