The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Apr-2024 16:39:21 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 279 OF 2024 T. Narasingh Patra …. Petitioner Santosh Kumar Subudhi Mr. Soumya Dev Ray, Advocate -versus- …. Opp. Party
Legal Reasoning
Mr. Om Swarup, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 22.04.2024 1. 1. This matter is taken up through hybrid mode. Judgment dated 12th January, 2024 (Annexure-1) passed 2. by learned 3rd Additional District Judge, Bhubaneswar in F.A.O. No.105 of 2023 is under challenge in this CMP, whereby dismissing the appeal, learned appellate Court confirmed the order dated 14th July, 2023 (Annexure-5) passed by learned Senior Civil Judge, Bhubaneswar in I.A. No.1 of 2023 (arising out of C.S. No.872 of 2023). 3. Mr. Ray, learned counsel for the Petitioner submits that the suit has been filed with a prayer to declare that the Defendant Nos.1 and 2 are not the adopted son and daughter of deceased Padmanav Subudhi and Sankuntala Subudhi and they had never been adopted by the said deceased persons at any point of time and they are son and daughter of Defendant No.3. It is further prayed that the deed of acknowledgment of adoption by Padmanav Subudhi and Sankuntala Subudhi dated 31st October, 2008 is a void document along with a relief to restrain the Defendants from utilizing the deed of acknowledgement of Page 1 of 5 // 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Apr-2024 16:39:21 adoption dated 31st October, 2008 and the order passed in Intestate Case No.24 of 2022, whereby vide order dated 23rd March, 2023, a direction has been made for issuance of succession certificate in favour of the Defendants. The Petitioner also prayed for cost of the suit. Along with the plaint, the Petitioner filed an application under Order XXXIX Rules 1 and 2 CPC (I.A. No.1 of 2023) seeking a relief to restrain the Opposite Party from utilizing the order dated 23rd March, 2023 passed in Intestate Case No. 24 of 2022 and certificate, if any, issued in his favour. Objections were filed to the said I.A. Considering the same, learned trial Court vide order dated 14th July, 2023 under Annexure-5, rejected the petition. Assailing the same, the Petitioner filed F.A.O. No.105 of 2023, which was also dismissed vide order under Annexure-1. Hence, this CMP has been filed. 4. Mr. Ray, learned counsel for the Petitioner further submits that the deed of acknowledgement of adoption as well as the order passed in Intestate Case was obtained by practising fraud on Court. Taking advantage of the same, the Opposite Party is trying to sell away the shares in the suit schedule property. It is submitted that Padmanav Subudhi and Sankuntala Subudhi were issueless and taking advantage of the same, the Defendant-Opposite Party managed to obtain the deed of acknowledgement of adoption as well as the order in Intestate Case No.24 of 2022 in his favour to grab the properties of said Padmanav Subudhi and Sankuntala Subudhi. Unless he is restrained from dealing with the properties, the Petitioner even if Page 2 of 5 // 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Apr-2024 16:39:21 succeeds in the suit, will get nothing. These aspects were not taken into consideration by learned Courts while passing the impugned orders under Annexures-1 and 5. He, therefore, prays for setting aside the impugned orders and to restrain the Opposite Party from utilizing and taking advantage of the certificate issued pursuant to the Intestate Case No.24 of 2022. 5. Mr. Swarup, learned counsel for the Opposite Party submits that since the deed of acknowledgement of adoption is registered one, a presumption of correctness is attached to it in view of Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (for brevity ‘the Act’). He further submits that the Petitioner has already challenged the order passed in Intestate Case No.24 of 2022 in F.A.O. No.66 of 2023, which is pending learned 2nd Additional District Judge, the Court of in Bhubaneswar. Order of status quo has been passed in the said appeal. However, no interim order has been passed staying operation of the order passed in Intestate Case No.24 of 2022. The relief sought for in the I.A. under Order XXXIX Rules 1 and 2 CPC cannot be granted as it is intended to obstruct a legal process pursuant to an order passed by a competent court of law. The Petitioner had knowledge of the order passed in Intestate Case No.24 of 2022 as he had filed an application in the said proceeding under Order 1 Rule 10 (2) CPC, which was rejected. Being aggrieved by the final order passed in Intestate Case, the Petitioner filed F.A.O. No.66 of 2023. Thus, the relief claimed in the suit in respect of the order passed in Intestate Case No.24 of 2022 cannot be granted as two parallel proceedings cannot Page 3 of 5 // 4 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Apr-2024 16:39:21 continue for the self-same relief. Taking into consideration the same, learned Courts have rejected the application under Order XXXIX Rules 1 and 2 CPC. As such, the CMP being devoid of any merit may be dismissed. 6. Taking note of the submissions made by learned counsel for the parties and on perusal of the record, it appears that the land in question has been recorded in the name of adopting parents of Opposite Party, namely Padmanav Subudhi and Sankuntala Subudhi. Admittedly, there is a deed of acknowledgement of adoption of the Opposite Party by Padmanav Subudhi and Sankuntala Subudhi. Legality of such deed of acknowledgement of adoption is in question in the suit. In view of Section 16 of the Act, a legal presumption of correctness is attached to the said deed unless and until it is disproved in the process of law. Thus, no order to restrain the right of the Defendant-Opposite Party flowing from the said deed can be passed in the suit unless and until the deed in question is declared to be void. It further appears that the Petitioner by filing an application under Order XXXIX Rules 1 and 2 CPC has sought for a direction to restrain the Opposite Party from utilizing the order dated 23rd March, 2023 passed in Intestate Case No.24 of 2022 and certificate, if any, issued in his favour. Since the order passed in Intestate Case No.24 of 2022 has not yet been set aside and the same is pending adjudication in F.A.O. No.66 of 2023 filed by the Petitioner, any order as prayed for in the petition under Order XXXIX Rules 1 and 2 CPC would amount to interfering in the adjudication of F.A.O. Page 4 of 5 // 5 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Apr-2024 16:39:21 No.66 of 2023. As such, neither the Courts have committed any error in rejecting the prayer made under Order XXXIX Rules 1 and 2 CPC. 7. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5