The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.647 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Praveen Chandra Bhanjdeo …. Petitioner -versus- Pratibha Manjari Devi & Ors.. …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. B.Bhuyan, Sr.Advocate For Opposite Parties : Mr. L.K.Maharana, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 25th August 2025 B.P. Routray, J.
Legal Reasoning
approached this Court in CMP No.726 of 2024 and this Court vide order dated 16th January 2025 directed the parties to maintain status- quo over the suit property and not to create any third party interest and also not to change the nature and character of the suit land pending the appeal before the 1st Appellate Court. Therefore, when such interim orders are operating in respect of the suit land till disposal of the appeal before the 1st Appellate Court, no necessity is there to direct for stay operation of the final decree. 7. On the backdrop of such rival contentions of both parties, the point falls for consideration at the first instance is regarding power of the Appellate Court under Order 41 Rule 5 of CPC. Rule 5 specifies that an Appellate Court may order for stay of execution of the decree for sufficient cause. 8. This Court in Ramesh Chandra Mohapatra vs. Bishnupriya Mangaraj & Ors., VOL 94 (2002) CLT 628, relying on the decision of the Hon’ble Supreme Court in Manohar Lal Chopra vs. Raj Bahadur Rao Raja Seth Hiralal., 1961 SCC OnLine SC 17 : AIR 1962 SC 527, have observed that, “even if the decree of the trial C.M.P. No.647 of 2025 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 court is a declaratory decree, there is no prohibition in the lower appellate court entertaining an appeal from the decree, from granting a stay of operation of the decree of the trial court. The power to stay the operation of a decree of the trial court is available under Order 41, Rule 5 of the Code of Civil Procedure and in any event, there is such a power in an appellate court exercising jurisdiction under Section 96 of the Code supplemented by the powers available under Section 151 of the Code of Civil Procedure, if it is taken to be necessary. If there is no specific power conferred by any provision of the Code, it is clear that the Court can in a proper case, exercise its inherent power. This is clear from the decision of the Supreme Court in Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal.” 9. It has been explained by Hon’ble Supreme Court in Manohar Lal Chopra (supra) that; “21. A similar question about the powers of the Court to issue a commission in the exercise of its powers under Section 151 of the Code in circumstances not covered by Section 75 and Order 26, arose in Padam Sen v. State of Uttar Pradesh [(1961) 1 SCR 884] and this Court held that the Court can issue a commission in such circumstances. It observed at p. 887 thus: C.M.P. No.647 of 2025 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 “The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature.” These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be persumed that the procedure specifically provided by the legislature for orders in certain circumstances is dictated by the interests of justice.” 10. Considering the principles propounded in above cited cases the power to stay operation of the decree of the Trial Court in appeal, it is clear that the Appellate Court has such power under Section 96 of the Code supplemented with powers under Section 151 of the CPC, where it is necessary. Now the question comes that whether in the present facts of the case was there any necessity for C.M.P. No.647 of 2025 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 the Appellate Court to direct for stay operation of the decree. As explained by Defendant No.3 in her petition under Annexure-4, it is stated that Defendant No.1 despite having the interim orders, which are to the effect of maintaining status-quo as to the nature and character of the suit property and owner thereof, is applying to the Revenue Authorities for correction of the ROR which compels Defendant No.3 to challenge the same under different forums. Further, Defendant No.1 taking advantage of such recording of the ROR in his name by virtue of the decree granted in his favour is impressing different authorities for getting certain benefits. 11. So far as the correction of the record of rights in favour of Defendant No.1 based on the final decree is concerned, the same is not disputed by present Petitioner. What is contended by him that once there is an interim order of status-quo is operating in respect of the property that stops further alienation of the property in favour of the third party, it cannot at any stage be imagined for increasing multiplicity of proceedings. Therefore, the order passed by the 1st Appellate Court to stay operation of the final decree is completely unnecessary. C.M.P. No.647 of 2025 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 Having seen the contentions of Defendant No.3 in her petition under Annexure-4 and the objection thereof filed by Defendant No.1 under Annexure-5 which reveals such facts that the mutation cases have been filed and were allowed and again were recalled are found undisputed on record. Defendant No.1 does not dispute the change of name of the parties in those revenue records against the claim of Defendant No.3. He has only said in the objection that by virtue of interim order of status-quo such a prayer is unnecessary on the part of the Defendant No.3 specifically after two years of the final decree. 12. The necessity of passing an interim order is a question of fact. When it is admitted that two years time period have already been elapsed from the date of the final decree, it is also found true at the same time that certain attempts has been made by Defendant No.1 to correct the record of rights in his name compelling Defendant No.3 to again apply for re-correction of the same on the ground of pendency of the appeal. On the facts that has been narrated in the petition filed by Defendant No.3 and taking note of the objections thereof given by Defendant No.1, it is felt apposite on the part of this Court that learned 1st Appellate Court has rightly passed the order C.M.P. No.647 of 2025 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 directing stay of operation of the final decree and as such this Court agrees with such finding of the 1st Appellate Court that in the circumstances the stay of operation of the final decree is a necessity. Accordingly, no infirmity is seen in the impugned order. 13.
Arguments
1. Heard Mr. B.Bhuyan, learned Senior Counsel for the Petitioner and Mr. L.K.Maharana, learned counsel for Opposite Party No.1. 2. Present CMP is directed against impugned order dated 4th April 2025 passed by learned District Judge, Baripada, Mayurbhanj C.M.P. No.647 of 2025 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 in RFA No.28 of 2023, wherein the operation of the final decree has been stayed. 3. One Padma Manjari Devi filed C.S. No.366 of 2022 before learned Senior Civil Judge, Baripada praying for partition, where present Petitioner was impleaded as Defendant No.1. In the said suit preliminary decree was passed on 20th August 2022 and final decree on 21st February 2023. The same were challenged by Pratibha Manjari Devi, who was Defendant No.3 in the aforesaid suit, in RFA No. 21 of 2023 and 28 of 2023 respectively on the ground that notice was not served upon her properly and secondly, she had a will in her favour in respect of the suit property. In the appeal against final decree, i.e. in RFA No. 28 of 2023, a petition was filed on 3rd January 2025 by the Appellant praying to stay operation of the final decree and the same being allowed in favour of Defendant No.3, present CMP is filed by Defendant No.1 challenging said order of the 1st Appellate Court dated 4th April 2025. 4. Mr. Bhuyan, learned Senior Counsel for the Petitioner submits that the power of the Appellate Court under Order 41 Rule 5 of the CPC does not permit grant of stay of operation of final decree and secondly, there was no necessity on the part of the 1st Appellate C.M.P. No.647 of 2025 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 Court to direct for stay operation of the final decree after more than two years from the date of decree. It is further submitted that had it been a decree of declaration there would have been justification on the part of the Appellate Court for directing stay of operation of the decree. But in the facts of this case where in a suit for partition the final decree has already been effected much before the present impugned order, there cannot be any justification from any stretch to stay operation of the final decree. 5. On the other hand, Mr. Maharana, learned counsel for Opposite Party (Defendant No.3) submits that it is not correct to say that the Appellate Court is handicapped to stay operation of the decree in exercise of the powers conferred under Order 41 read with Section 151 of the CPC and so far as the other contention regarding necessity of passing such order of stay is concerned, it was very much necessary for the reason that Defendant No.1 was misutilizing said decree granted in her favour which is challenged on the ground of suppression of facts and fraud. It is further submitted that taking advantage of grant of final decree in his favour, Defendant No.3 is pursuing the same at different forums for such consequential reliefs in his favour raising multiplicity of proceedings for Defendant No.3. C.M.P. No.647 of 2025 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 6. It is submitted by Mr. Bhuyan, learned Senior Counsel that, earlier against the interim order passed in the RFA the parties had
Decision
In the result, the CMP is dismissed. (B.P. Routray) Judge S.Das/Sr.Steno C.M.P. No.647 of 2025 Page 9 of 9