High Court
Case Details
HIGH COURT OF ORISSA: CUTTACK C.M.P No.331 of 2023 (In the matter of an application under Article 227 of the Constitution of India, 1950) ******* D. Anand Rao Dora … Petitioner -versus- SDO and Estate Collector, Sonepur … Opposite Party Advocate for the Parties : For the Petitioner : For Opp. Party Mr. Bibekananda Bhuyan, Advocate Mr. Swayambhu Mishra, Additional Standing Counsel CORAM: JUSTICE KRUSHNA RAM MOHAPATRA
Decision
------------------------------------------------------------------------------- Heard and Disposed of on 11.07.2023 ------------------------------------------------------------------------------ O R D E R 7. 1. 2. This matter is taken up through hybrid mode. Order dated 10th March, 2023 (Annexure-12) passed by learned Civil Judge (Junior Division), Sonepur in Execution Case No.7 of 1977 is under challenge in this CMP, whereby learned trial Court decided to proceed with Execution Case No.7 of 1977 by rejecting the application filed by the Petitioner to drop the said proceeding. 3. Mr. Bhuyan, learned counsel for the Petitioner submits that the property in question was originally part of the estate of one B.K. Babu of Bolangir district. Due to his insanity, SDO, Sonepur was appointed as the Estate Collector for management of his properties. On 18th March, 1969, the property in question along with the building standing thereon was let out to the Petitioner on monthly rent basis by the Estate Collector Page 1 of 5 // 2 // executing an agreement in that behalf. Due to non-payment of monthly rent by the Petitioner from July 1973 to January, 1975, the Estate Collector, Sonepur initiated HRC Case No.1 of 1975 before the House Rent Controller-cum-SDJM, Sonepur. The Petitioner, on the other hand, initiated HRC Case No. 2 of 1975 under Section 10 of the Orissa House Rent Control Act, 1967 for effecting repairs to the property in question. Both the cases were heard together and was decided by a common judgment on 19th March, 1977 (Annexure-1) directing the Petitioner to put the Estate Collector in possession of the house in question. Challenging the said order, the Petitioner preferred HRC Appeals No.2 of 1977 and 4 of 1977 before learned CJM, Bolangir. The Estate Collector, Sonepur also filed Execution Case No.7 of 1977 before the learned Civil Judge (Junior Division), Sonepur for taking delivery of possession pursuant to the judgment under Annexure-1. 3.1 Subsequently, both the HRC appeals filed by the Petitioner were dismissed by a common judgment dated 10th April, 1978. The Petitioner assailing the said common judgment preferred OJC No.656 of 1978 before this Court. During pendency of the writ petition before this Court, said B.K. Babu died. Accordingly, Court of Wards released the estate of said B.K. Babu from the superintendence and management of SDO and Estate Collector, Sonepur in favour of the legal heirs of said late B.K. Babu vide notification dated 22nd July, 1983 (Annexure-5) issued by the Board of Revenue. Said notification was also published in the Official Gazette of Government of Odisha. On the death of BK Babu, symbolic possession of the suit property was handed over to legal heirs of said BK Babu Page 2 of 5 // 3 // list dated 22nd August, 1983 (Annexure-6). vide charge Subsequently, legal heirs of said BK Babu vide RSD dated 25th August, 1983, alienated the property in favour of the Petitioner. After purchase, the suit property has already been recorded in the name of the Petitioner and ROR in respect of the said property has already been published in favour of the Petitioner on 27th December, 2005 (Annexure-7). 3.2 Accordingly, in OJC No. 656 of 1978, the LRs of late B.K. Babu were impleaded as Opposite Party Nos. 4 to 10 and they entered into a compromise with the Petitioner admitting therein that the amount deposited in Execution Case No.7 of 1977 may be paid to the them as they have already executed the registered sale deed in respect of the suit property in favour of the Petitioner and also to drop the Execution Case No. 7 of 1977. Vide order dated 22nd November, 1983 (Annexure-9), this Court disposed of the said writ petition on the terms of the compromise. As an interim order was operating in the writ petition, the learned Executing Court applying the guidelines in Asian Resurfacing of Road Agencies -v- Central Bureau of Investigation, reported in (2018) 16 SCC 299, revived the Execution Case No.7 of 1977 and proceeded with it. 4. Mr. Bhuyan, learned counsel for the Petitioner submits that the Petitioner had also filed an application under Section 47 CPC in CMA No.1 of 2022, which was rejected. As such, the Petitioner filed Civil Revision No.1 of 2022, which was also dismissed by learned District Judge, Sonepur. Assailing the same, the Petitioner, filed CMP No.1018 of 2022, which was dismissed by this Court on 22nd November, 2022. Thereafter, the Petitioner filed an application to drop the execution proceeding Page 3 of 5 // 4 // in view of the aforesaid developments as well as order dated 22nd November, 1983 passed in OJC No. 656 of 1978. The said application was rejected vide order under Annexure-12. As such, the Petitioner being aggrieved has filed this CMP. . 5. Taking into consideration the peculiar facts and circumstances of the case, this Court directed Mr. Mishra, learned Additional Standing Counsel to take instruction in the matter as to whether the SDO and Estate Collector, Sonepur is competent to purse Execution Case No.7 of 1977 pending before the learned Civil Judge, (Junior Division), Sonepur in view of the subsequent developments. Learned Additional Standing Counsel was also directed to take instruction as to whether legal heirs of late B.K. Babu were impleaded as parties to the execution case or not. Today, Mr. Mishra learned ASC submitted a copy of the written instruction of the Sub-Collector, Sonepur along with counter affidavit of the Opposite Party No.4 in Court and the same are taken on record. On the basis of the instruction received from the Sub-Collector, Sonepur, Mr. Mishra, learned ASC accepts the submission of Mr. Bhuyan, learned counsel for the Petitioner. He, however, submits that legal heirs of late B.K. Babu have not yet been impleaded as parties to the execution proceeding. 6. Taking into consideration the submissions made by the learned counsel for the parties and the developments as stated above, this Court is of the considered opinion that the SDO and Estate Collector, Sonepur is no more competent to pursue the execution proceeding in Execution Case No.7 of 1977 in view of notification of Member, Board of Revenue under Annexure-5, subsequent charge report under Annexure-6 as well as the order Page 4 of 5 // 5 // dated 22nd, November, 1983 (Annexure-9) passed by this Court in OJC No. 656 of 1978 and the said execution case pending before learned Civil Judge, (Junior Division), Sonepur has become otiose. However, steps should have been taken by the SDO, Sonepur to substitute the legal heirs of late B.K. Babu in the execution proceeding, who have a right to be heard in view of the aforesaid facts and circumstances of the case to regularize and give a logical end to the execution proceeding. 7. In view of the above, the impugned order under Annexure-12 is set aside. 8. Accordingly, the CMP is disposed of, remitting the matter to learned Civil Judge (Senior Division), Sonepur to proceed with Execution Case No. 7 of 1977 pending before it in terms of the observation as above, with a direction that the SDO, Sonepur shall file an application to implead the legal heirs of late B.K. Babu as Decree Holders to the execution proceeding and on their impleadment, the execution proceeding shall be disposed of as infructuous in view of the developments, as narrated above. 9. As requested by Mr. Mishra, learned Additional Standing Counsel, a copy of this order shall be handed over to him for communication and compliance. Urgent certified copy of this order be granted on proper application. Signature Not Verified Rojalin Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Jul-2023 10:34:19 (K.R. Mohapatra) Judge Page 5 of 5