The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-Jul-2024 16:40:56 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 438 of 2024 Kshitish Chandra Tripathy and another .... Petitioners Mr. Goutam Mishra, Senior Advocate being assisted by Mr. Devavrat Devesh, Advocate Durga Prasad Panigrahi and others -versus- ….
Legal Reasoning
Opp. Parties Mr. Brhmananda Tripathy, CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 18.07.2024 3. 1. 2. This matter is taken up through hybrid mode. Petitioners in this CMP seeks to assail the judgment dated 16th January, 2024 (Annexure-5) passed in FAO No.157 of 2023, whereby learned Additional District Judge, Bhubaneswar modified the order dated 15th September, 2023 (Annexure-4) passed by learned Senior Civil Judge, Bhubaneswar in IA No.1 of 2023 (arising out of CS No.1542 of 2023) and directed that Petitioners/Appellants shall not transfer the suit land to anybody by way of sale, mortgage or in any other mode without permission of the Court till disposal of the suit. Learned appellate Court, however, directed the parties to maintain status quo over the suit property, as directed by learned trial Court. 3. Mr. Mishra, learned Senior Advocate appearing for the Petitioners submits that the suit has been filed by the Opposite Party Nos.1 and 2 claiming right, title, interest and possession Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-Jul-2024 16:40:56 // 2 // over the suit land and also to declare the registered General Power of Attorney (GPA) dated 30th April, 2014 executed by one Annapurna Devi in favour of Plaintiff No.2 along with other reliefs including the relief of permanent injunction. Plaintiffs/Opposite Party Nos.1 and 2 also filed an application under Order XXXIX Rules 1 and 2 CPC in IA No.1 of 2023 and learned trial Court without realizing that the Plaintiff No.2 has no locus standi to pursue the suit being POA of Annapurna Devi, who died since 28th April, 2020, directed the parties to maintain status quo over the entire suit property. Learned appellate Court, however, modified the impugned order to the aforesaid extent. None of the Courts considered that by the time the suit was filed, Annapurna Devi had died and thus, Plaintiff No.2 had no locus standi to pursue the suit and pray for the relief in respect of POA executed in his favour. 3.1 Mr. Mishra, learned Senior Advocate further submits that death of Annapurna Devi has been conveniently suppressed by the Plaintiffs/Opposite Party Nos.1 and 2 in the plaint to get an equitable relief. None of the Courts have recorded a finding that the Plaintiffs have prima facie case in their favour. Petitioners have purchased the land in question in the year 1996. Thus, the Plaintiff No.1 cannot claim any title over the same being a subsequent purchaser. He, however, submits that the same is the subject matter of trial in the suit, but learned Courts passed the impugned order on an erroneous impression that the POA executed in favour of Plaintiffs/Opposite Party Nos.1 and 2 is still valid. Thus, the impugned order is not sustainable. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-Jul-2024 16:40:56 // 3 // 4. Mr. Tripathy, learned counsel for Opposite Party Nos.1 and 2 fairly concedes that by the time the suit was filed, said Annapurna Devi had died. Thus, the prayer made in respect of the declaration of the POA executed by said Annapurna Devi in favour of the Plaintiff No.2 may not be granted, but the suit cannot be held to be not maintainable. Plaintiff nNo.1 has locus standi to pursue the suit. It is further submitted that Plaintiff No.1 is a necessary party and Plaintiff No.2 is a proper party, who has been impleaded to avoid any further complications during trial of the suit. Learned trial Court, in order to protect the lis, has directed to maintain status quo over the suit property and restrained the present Petitioners who are Defendant Nos. 4 and 5 to alienate the property. Hence, there is no illegality in the impugned order. 5. Taking note of the submissions of learned counsel for the parties, this Court finds that said Annapurna Devi had executed registered POA dated 30th April, 2014 in favour of Plaintiff/Opposite Party No.2 by virtue of which he sold the land in question to Plaintiff No.1. Admittedly, Annapurna Devi died on 28th April, 2020. Thus, the Plaintiff No.2 does not have any locus standi to pursue the suit seeking for declaration of the registered GPOA dated 30th April, 2014 to be valid after the death of said Annapurna Devi. It appears that learned Courts have passed the order in respect of the entire suit land and the Plaintiff No.1 has purchased a portion of it. Thus, learned trial Court could not have granted the order of status quo in respect of the entire suit property. Learned trial Court without Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-Jul-2024 16:40:56 // 4 // considering the same also confirmed it subject to the modification, as aforesaid. 6. Law is well-settled that the subject matter of lis should be protected during pendency of the suit. In the facts and circumstances of the case, this Court feels that the impugned orders passed under Annexures-4 and 5 should be confined to the schedule of properties more fully described in the sale deed executed in favour of Plaintiff No.1/Opposite Party No.1 and direct so. 7. The CMP is accordingly disposed of. 8. Order of status quo as modified by the learned appellate Court is confirmed subject to the aforesaid modification. Issue urgent certified copy of this order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4