The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 465 OF 2023 Puspalata Das @ Moharana Petitioner Mr. Tusar Kumar Mishra, Advocate …. -versus- Muralidhar Bhola & others …. Opp. Parties Mr. Partha Mukherji, Advocate (For Opp. Party No.1) Mr. Prafulla Ch. Biswal, Advocate (For Opp. Party No.2) CORAM: JUSTICE K.R. MOHAPATRA Order No. 4.
Decision
ORDER 28.08.2023 This matter is taken up through hybrid mode. 1. 2. Mr. Prafulla Ch. Biswal, learned counsel and his associates have entered appearance on behalf of Opposite Party No.2 by filing Vakalatnama in Court today, which is taken on record. 3. Order dated 4th April, 2023 (Annexure-5) passed by learned District Judge, Cuttack in RFA No.148 of 2017 is under challenge in this CMP, whereby an application filed by the Petitioner to stay further proceedings of the Execution Case No.4 of 2018 pending in the Court of learned 2nd Additional Civil Judge (Senior Division), Cuttack, during pendency of the appeal, has been rejected. 4. Mr. Mishra, learned counsel submits that the Petitioner had filed T.S. No. 398 of 1996 for declaration of right, title and interest over ‘B’ and ‘C’ Schedule properties and for other consequential and ancillary relief. The Opposite Party No.1 had Page 1 of 6 // 2 // filed T.S. No. 536 of 1996 for declaration of title over ‘C’ Schedule property and for recovery of possession as well as damages and for permanent injunction. T.S. No.398 of 1996 filed by the Petitioner was dismissed and T.S. No.536 of 1996 filed by Opposite Party No.1 has been decreed. Assailing both the decrees, the Petitioner had filed RFA Nos.147 and 148 of 2017 respectively. During pendency of both the appeals, the Opposite Party No.1 filed Execution Case No.4 of 2018, which is pending in the Court of learned 2nd Additional Civil Judge (Senior Division), Cuttack. The Petitioner was set ex parte in the execution proceeding as she could not appear in spite of receipt of the notice in the execution case. However, she entered appearance on 24th November, 2022 in the execution proceeding. She also filed an application in RFA No.148 of 2017 under Order XLI Rule 5 C.P.C. for stay of the execution proceeding during pendency of the appeal. The said petition was rejected vide order dated 4th April, 2023, which is under challenge in this CMP. 4.1 It is submitted by Mr. Mishra, learned counsel for the Petitioner that unless the execution proceeding is stayed, the appeal itself will be infructuous as the Petitioner will be evicted from the suit property. It is his submission that in view of provision under Order XLI Rule 5 C.P.C., learned Appellate Court could have imposed certain conditions for stay of the execution proceeding till disposal of the appeals. The Opposite Party No.1, who is the contesting respondent, has already entered appearance in the appeal. Thus, there is no difficulty in Page 2 of 6 // 3 // disposing of the appeals at the earliest and till disposal of such appeals, the execution proceeding should be stayed. 4.2 It is his submission that while issuing notice in the matter, this Court vide order dated 2nd May, 2023 in I.A. No.439 of 2023 directed that on deposit of Rs.50,000/- before the executing Court within a period of fifteen days hence, further proceeding in Execution Case No.4 of 2018 pending before learned 2nd Additional Civil Judge (Senior Division), Cuttack shall remain stayed. Pursuant to the said order, the Petitioner has already deposited the said amount. He, therefore, submits that the said interim order may be made absolute till disposal of the appeals. 5. Mr. Mukherji, learned counsel for Opposite Party No.1 vehemently objects to the same. It is his submission that since 1996, the Petitioner had not paid a single pie for occupation of the suit property. Now a decree has been passed in favour of Opposite Party No.1 and when the bailiff was issued to evict the Petitioner and hand over the possession to the Opposite Party No.1, the Petitioner came up with the application for stay of the execution proceeding. It seems that the Petitioner is only interested to drag the litigation and harass the Opposite Party No.1. Since none of the conditions under Order XLI Rule 5 C.P.C. has been complied with before filing of the petition for stay of the execution proceeding, learned Appellate Court has committed no error in rejecting such application. Learned Appellate Court can only take into consideration the petition for stay of the execution proceeding within the scope and ambit of Page 3 of 6 // 4 // Order XLI Rule 5 C.P.C. and it has rightly done so. Thus, the impugned order under Anenxure-5 should not be interfered with. 6. Although the Opposite Party No.2 has entered appearance in Court today, Mr. Mishra, learned counsel for the Petitioner submits that the Petitioner does not claim any relief against Opposite Party No.2 in this CMP. 7. Taking into consideration the submissions made by learned counsel for the parties and on perusal of the record, it appears that when the contesting Respondent in the appeals has already entered appearance and it is submitted at the Bar that there is no legal impediment for disposal of the appeals, this Court is of the considered opinion that the appeals should be disposed of at an early date keeping in mind the nature of dispute involved. 8. However, a decree for eviction and damages has been passed against the Petitioner. Thus, balancing the convenience/ inconvenience of the parties, this Court while passing the interim order directed the Petitioner to deposit a sum of Rs.50,000/- before the executing Court with a condition precedent to stay further proceedings of the execution case. 9. It is, however, submitted by Mr. Mukherji, learned counsel for Opposite Party No.1 that although vide order dated 10th August, 2023, it was directed that the draft should be handed over to the Opposite Party No.1 within a week, but it was only handed over to learned counsel for Opposite Party No.1 yesterday. Page 4 of 6 // 5 // 10. It is submitted by Mr. Mishra, learned counsel for the Petitioner that there was some delay in taking back the draft presented before learned Executing Court and to make a fresh draft in favour of Opposite Party No.1 and handover the same. However, the said order has already been complied with. 11. In view of such submission, this Court feels that interest of justice will be best served, if the Petitioner further deposits a consolidated amount before learned Executing Court together with rent for occupation of the suit premises. 12. Accordingly, the CMP is disposed of with a direction that in the event the Petitioner deposits a further sum of Rs.50,000/- (Rupees fifty thousand) in Execution Case No.4 of 2018 pending in the Court of learned 2nd Additional Civil Judge (Senior Division), Cuttack within a period of two weeks hence and also goes on paying Rs.5,000/- (Rupees five thousand) per month to the Opposite Party No.1 for occupation of the suit premises, further proceedings in Execution Case No.4 of 2018 shall remain stayed till disposal of the appeal. 13. It is made clear that such deposit if made before learned Executing Court and payment of rent to the Opposite Party No.1 for occupation of the suit premises shall be without prejudice to either of the parties. This arrangement is made only for stay of the execution proceeding and that the Opposite Party No.1- D.Hr. should not be prejudiced for stay of the execution proceeding. 14. In the event such deposit is made within the time stipulated as above, the same shall be invested in a fixed deposit Page 5 of 6 // 6 // in any Nationalized Bank at least for a period of six months, which shall be renewed from time to time as per the direction of executing Court. The amount so deposited along with interest accrued thereon shall be released to the parties subject to the result of the appeal. 15. In the event, the Petitioner fails to comply with the aforesaid directions, learned Executing Court will be at liberty to proceed with the execution case in accordance with law. 16. It is further directed that both the parties shall cooperate with learned District Judge, Cuttack for early disposal of RFA Nos.147 and 148 of 2017. 17. The interim order dated 2nd May, 2023 passed in I.A. No.439 of 2023 stands vacated. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 12:13:45 Page 6 of 6