The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Sep-2024 14:11:58 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.731 OF 2017 Diljan Khan and others …. Petitioners Mr. Samir Kumar Mishra, Senior Advocate being assisted by Ms. Sushrita Sahoo, Advocate -versus- SK. Yusuf @ Piru and others …. Opp. Parties Mr.A. Nayeem, Advocate (For Opp. Party No.13) Mr. Asutosh Mohanta, Advocate (For Opp. Party Nos.14 & 15) CORAM: JUSTICE K.R. MOHAPATRA ORDER 12.09.2024 Order No. 06. 1. This matter is taken up through hybrid mode. 2. Petitioners in this CMP seek to assail the order dated 10th January, 2017 (Annexure-2) passed in TS No.32/06 of 1987/1986 (FD), whereby learned Civil Judge, (Senior Division), Udala refused to recall the order dated 26th March, 2016 passed in the said final decree proceeding.
Legal Reasoning
3. Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that Defendant Nos.7(a) to 9(a) are Petitioners in this CMP. In the Preliminary decree, learned trial Court has specifically directed that Plaintiff is entitled to 1/8th share in the suit property and the rest of the suit property shall be divided amongst the parties according to their respective shares. The land sold by one Sk. Futunulla to the Defendant No.2 to 6 was to be adjusted to his share. Thus, learned trial Court in the preliminary decree held that the Defendants including the present Petitioners are entitled to definite share in the suit property. Accordingly, the final decree proceeding was initiated and share of the Plaintiff was Page 1 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Sep-2024 14:11:58 carved out by the Civil Court Commissioner. However, the Commissioner submitted a report stating that he is unable to specify the share of the Defendants. As such, he returned the writ with a report that he is unable to specify the share of the Defendants as the share of the Defendants has not been mentioned in the decree, so also the specific share to be carved out for Defendant No.10-Hemarulla, who has been transposed as Plaintiff in place of original Plaintiff Hadiani Bibi. Accordingly, learned Civil Court carved out the share of Defendant No.7(a) and 8 to be Ac.0.1575 dec. in his order dated 2nd August, 2008. However, said order dated 2nd August, 2008 was challenged on several grounds. Thus, learned trial Court continued to carve out the share of the parties and upon hearing learned counsel for the parties, passed order dated 26th March, 2016, holding as under: (i) The Plaintiff (SH) 1/8th equal to 9/72th share (ii) Deft. No.1(R) (iii) Deft.No.10(R) (iv) Deft.NO.11(R) 14/72th share 14/72th share 14/72th share (v) Defts.No.12,13 & 14(R) 07/72th share each entitled (vi) Deft.No.15, Deft.No.7(a) Deft.No.8 & Deft.No.9 (DK) Are excluded by Deft.No.1 & Deft. No.10 to Deft No.14 as per Section 150 of Mohamme- dan Law and as such they arenot entitled for any share in the property of propositus of Sk. Nazirulla 4. In the said order at column-vi, it is specifically stated that Defendant Nos.15, 7(a), 8 and 9 (DK) are excluded by Defendant Nos.1 and 10 to 14 as per Section 150 of Mohammedan Law and as such, they are not entitled to any share in the property of propositus of Najirulla. Learned trial Court further stated that the Page 2 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Sep-2024 14:11:58 share of Defendant No.1 and Defendant No.10 to 14 after death of Hadiani Bibi would be as under: (i) Deft.No.1 (SH) of Sk. Nazirulla (ii) Deft. No.10 (SH) of both propositus of Sk. Nazirulla and Hadiani Bibi (iii) Deft. No.11 (SH) of both propositus of Sk. Nazirulla and Hadiani Bibi (iv) Deft. No.12(a) and Deft. No.12(b) (R) for both Nazirulla and Hadiani Bibi (v) Deft. No.13(R) for both Nazirulla and Hadiani Bibi (vi) Deft. No.14(R) for both Nazirulla and Hadiani Bibi 98/504th share 116/504 share 116/504th share 58/504th share 58/504th share 58/504th share 5. The Petitioners, being aggrieved filed an application to recall the order dated 26th March, 2016 ,which was dismissed vide order dated 10th January, 2017. Hence, this CMP has been filed. 6. It is submitted by Mr. Mishra, learned Senior Advocate appearing for the Petitioners that when the share of the parties had already been determined vide order dated 2nd August, 2008, there was no occasion to pass the order dated 26th March, 2016. That amounts to recall of the order dated 2nd August, 2008 without following due procedure of law. The Petitioners are entitled to share in the suit property as per the preliminary decree, which was clarified vide order dated 2nd August, 2008. Learned trial Court without considering the matter in its proper prospective passed the impugned order under Annexure-2. Hence, this CMP has been filed. Page 3 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Sep-2024 14:11:58 7. Mr. Nayeem, learned counsel for the Opposite Party No.13 submits that there is no illegality in the impugned order. Since the Petitioners have not challenged the order dated 26th March, 2016 and has only challenged the order refusing to recall the said order vide the impugned order under Annexure-2, this CMP is incompetent and is liable to be dismissed. 8. Mr. Mohnata, learned counsel for Opposite Party Nos.14 and 15 submits that since there was some confusion in the order dated 2nd August, 2008 for which, learned trial Court continued to determine the share in his order dated 26th March, 2016, which is clear from the contents of the order itself. Further, Petitioners have a statutory remedy available under Section 96 CPC. Thus, a petition under Section 151 CPC to recall the order dated 26th March, 2016 is not maintainable. As such, there is no illegality either in the order dated 26th March, 2016 or order under Annexure-2. Hence, this CMP is liable to be dismissed. 9. Taking into consideration the submission made by learned counsel for the parties and on close scrutiny of the materials on record, it is apparent that while passing the preliminary decree, learned trial Court held that the Plaintiff is entitled to 1/8th share in the suit property and the rest of the suit property shall be divided amongst the parties according to their respective shares. Learned trial Court while passing the preliminary decree, did not pass any order with regard to definite entitlement of the Defendants in the suit property. Thus, learned trial Court made the exercise to find out the respective shares of the parties vide order dated 26th March, 2016. In essence, order dated 26th March, 2016 is a fresh preliminary decree. Thus, learned trial Court has committed no error in rejecting the petition for recall of the said order. Order Page 4 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Sep-2024 14:11:58 dated 26th March, 2016 can only be challenged in a properly constituted appeal under Section 96 of the Code of Civil Procedure. Further, it appears that order dated 26th March, 2016 is not under challenge in the instant CMP. 10. In that view of the matter, this Court, without interfering with the impugned order dated 10th January, 2017 (Annexure-2) disposes of this CMP with an observation that the Petitioners if so advised may work out their remedy by filing a properly constituted appeal under Section 96 of the Code of Civil Procedure. 11. Interim order dated 3rd July, 2017 passed in Misc. Case No.832 of 2016 stands vacated. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 5 of 5