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: 20-May-2024 14:31:10 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.520 OF 2024 Trilochan Panigrahi …. Petitioner Mr. Samir Kumar Mishra, Senior Advocate being assisted by Ms. Susrita Sahoo, Advocate -versus- State of Odisha and others …. Opp. Parties CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 17.05.2024 Order No. 01. 1. This matter is taken up through hybrid mode. 2. Order dated 12th March, 2024 (Annexure-4) passed in Execution Case No.02 of 2023 is under challenge in this CMP, whereby learned Civil Judge, (Junior Division), Soro rejected an application filed by the Petitioner-DHr. to deploy necessary police personnel for demolition of the illegal construction standing over the suit land for effecting final decree passed in TS No.1015 of 1994. 3. Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that the suit was filed for partition. In the final decree proceeding, the Commissioner filed his report stating that the delivery of possession could not be given as there are standing trees over the decreetal property and two rooms of mud walls which were under lock and key. Thus, it is impossible to execute the writ without demolition of the house by breaking open the lock and key which are standing over the suit property with the police help. The final decree proceeding was signed on 7th January, 2022. In order to execute the final decree, Execution Case No.02 of 2023 has been filed by the Petitioner. In the said execution case, an application was filed by the Petitioner-decree Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-May-2024 14:31:10 holder to deploy necessary police personnel for demolition of the structure over the suit property to give delivery of possession of the suit property. Learned executing Court holding that the Commissioner has merely submitted that there are two houses of the JDr standing over the suit property but he has not specified as to whether the said plot has been allowed to the JDr or not rejected the petition. He further directed the Petitioner to pay the cost of one day salary for deployment of the police personnel to execute the decree. 4. Mr. Mishra, learned Senior Advocate further submits that when the first part of the prayer made by the Petitioner has been rejected, then there would be no reason to deploy the police for execution of the decree. It is his submission that the Executing Court could have directed the Commissioner to furnish a detailed report if it is necessary for effective execution of the decree. In the case of Rahul S. Shah vrs. Jinendra Kumar Gandhi and others, reported in (2021) 6 SCC 418 ,which was followed by this Court in Lingaraj Tripathy -v- Agadehi @ Taramani Tripathy and others, reported in (2021) (II) OLR-732, this Court held as under: “5. The case law cited by learned counsel for the Petitioner makes it obligatory on the executing Court to seek for police assistance, whenever it feels appropriate and expedient for hassle free execution of decree. The parties to the execution proceeding should not be burdened with the cost of deployment. If in the facts and circumstances of any given case it is not so required.” 5. It is his submission that learned executing Court has lost sight of the settled position of law while passing the impugned order. Hence, he prays for setting aside the impugned order under Annexure-4 and to remit the matter to learned executing Court for Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-May-2024 14:31:10 fresh adjudication of the petition filed for demolition of the illegal construction by police help. 6. Taking into consideration the submission made by Mr. Mishra, learned Senior Advocate and on perusal of the record, this Court finds that learned executing Court raised doubt with regard to identification of the suit property over which the illegal construction is existing. No objection to the said petition was filed by the Opposite Parties. It further appears that learned executing Court raised doubt with regard to the identification of the suit property on which the construction is required to be demolished. Since there is no objection to the report of the Commissioner and no objection was also filed to the petition for demolition of the suit house, learned executing Court should not have raised such a doubt. The doubt, could have been could have been clarified by referring to the Commissioner’s report submitted in the final decree proceeding. If still the executing Court has any doubt, it could have got it clarified from the Commissioner himself. Further, learned trial Court could not have directed the Petitioner- decree holder to deposit the cost for police assistance for demolition of the illegal structure. When learned Executing Court has rejected the prayer for demolition of the illegal structure, this Court does not find any reason to deploy police for such execution. Thus, the impugned order appears to be self contradictory. 7. In that view of the matter, the impugned order is not sustainable and accordingly set aside. The matter is remitted to learned executing Court for fresh adjudication of the petition keeping in mind the observations made hereinabove. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-May-2024 14:31:10 While adjudicating the petition, the Court should also keep in mind that it is the duty of the executing Court to see that the decree is effectively executed. 8. Since the suit is of the year 1995, learned Executing Court should take care to see that the petition is disposed of at the earliest and he proceeds with the execution case expeditiously. 9. This CMP is accordingly disposed of. 10. Since this CMP is disposed of without issuing notice to the Opposite Parties, they are liberty to seek for variation of this order if they feel aggrieved. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4