Manorama Nayak @ Rout v. Ramachandra Rout & Anr.

…. Mr. D.R. Mohapatra, AGA CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 31.01.2025 Order No.

Heard, learned counsel for the petitioner and learned AGA appearing for opposite party No.2.

No notice is issued to opposite party No.1 as the mater is disposed of at the stage of admission.

Instant petition is filed by the petitioner challenging the impugned order dated 25th November, 2024 passed in connection with CMA No.77 of 2024 under Annexure-1 and further to direct opposite party No.2 to implement the order dated 27th April, 2023 in I.A. No.454 of 2016 of learned Civil Judge (Sr. Division), Bhadrak on the grounds stated therein.

Learned counsel for the petitioner submits that CMA No.77 of 2024 is filed seeking implementation of the interim order dated 27th April, 2023 with the assistance of opposite party No.2. It is further submitted that the ex parte order of status quo was confirmed and made absolute by order dated 27th April, 2023, whereafter, the disobedience has taken place recently, hence, the application under Section 151 CPC seeking its enforcement, as opposite party No.1 took steps to put up a fence over the suit land but it was not duly considered and appreciated leading to the dismissal of CMA No.77 of 2024.

Learned AGA for the State would submit that the impugned order under Annexure-1 is perfectly justified as the petitioner has a recourse to seek remedy in terms Order 39 Rule 2A CPC and as such, there is no need for implementation of the order passed in I.A. 454 of 2016 in the year 2023.

From the record, it is made to reveal that an earlier CMA was dismissed in 2023. It is made to appear that the ex parte order stands confirmed later on in I.A. 454 of 2016. Admittedly, proceeding under Order 39 Rule 2A CPC is pending against disobedience vis-(cid:224)-vis the ex parte order dated 20th December, 2016. As earlier stated, the order status quo was confirmed, while disposing of I.A. No.454 of 2016. It is made to understand that despite an order of status quo, the disobedience against opposite party No.1 is alleged and in one of such instances, the proceeding under Order 39 Rule 2A CPC is pending disposal before learned court below. Against the aforesaid backdrop, the Court is of the view that the order of status quo in I.A. No.454 of 2016, in case, shown to have been violated, even though the petitioner is having a remedy under Order 39 Rule 2A CPC to avail, learned court below ought to have taken cognizance of the same and directed opposite party No.2 to implement the same as any such fencing over the suit land is most likely to affect the parties and may even lead to further complications. In other words, the Court reaches at a conclusion that the impugned order under Annexure-1 is required to be interfered with a direction to opposite party No.2 to consider the disobedience dated 2nd April, 2024 in respect of which CMA No.77 of 2024 was filed and dismissed. The Court is of the above view for the reason that implementation of an order under Order 39 Rule(s) 1 & 2 CPC is not readily to be denied merely for the reason that there is an alternate remedy under Order 39 Rule 2A CPC to be available.

Accordingly, it is order.

Urgent copy of this order be issued as per rules. (R.K.Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 03-Feb-2025 15:27:46