The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 472 OF 2022 Hema Ray Nayak @ Hema Nayak and others …. Petitioners Mr. Prasanta Kumar Satapathy, Advocate Khageswar Manseth …. Opp. Party -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 23.03.2023 CMP NO. 472 OF 2022 & I.A. No. 298 of 2023 3. 1. This matter is taken up through hybrid mode. 2. This is an application for stay of further proceedings in E.P. No. 4 of 2019 (arising out of C.S. No.23 of 2000) pending before learned Senior Civil Judge, Balliguda till disposal of CMP. 3. While considering the I.A. for extension of the interim order, this Court feels that merit of the case has to be gone into. Hence, on consent of learned counsel for the Petitioners, the CMP is taken up for final disposal. 4. The Petitioners in this CMP seek to assail the order dated 12th April, 2022 (Annexure-1) passed by learned Senior Civil Judge, Balliguda in E.P. No. 4 of 2019 (arising out of C.S. No. 23 of 2000), whereby rejecting the objection filed by the Petitioners, learned Executing Court held that the D.Hr.- Opposite Party is entitled to get the recovery of possession and Page 1 of 5 // 2 // directed them-J.Drs. to deliver vacant possession of the suit land within one month from the date of the order. 4.1 It is submitted by Mr. Satapathy, learned counsel for the Petitioners that T.S. No. 23 of 2000 was filed by the Opposite Party for permanent injunction. The suit was decreed vide judgment and decree dated 31st January, 2002 and 8th February, 2002 respectively restraining the Petitioners from entering upon the suit land and creating disturbance in the peaceful possession of the Opposite Party. Although the decree was passed in the year, 2002, the D.Hr.-Opposite Party after lapse of seventeen years filed E.P. No.4 of 2019 to execute the decree by evicting the Petitioners from the suit land. It is alleged in the petition that the Petitioners forcibly entered into the possession of the suit land on 2nd September, 2018 and started construction of the house in which they are residing at present. It is further submitted that execution petition is hopelessly barred by limitation. Further, the Opposite Party has not established as to when the Petitioners forcibly entered into the possession of the suit land. In the objection, the Petitioners have categorically stated that they are residing over the suit land for more than twelve years by the time of filing of the execution petition by constructing their residential house. It was also stated therein that since the suit was for permanent injunction, no recovery of possession to the Opposite Party could have been granted in the execution petition. The objection of the Petitioners was not properly considered. Learned Executing Court framed two issues for consideration. Firstly, whether the execution petition Page 2 of 5 // 3 // is barred by limitation and secondly, if not, whether the Plaintiff is entitled to get the recovery of possession as prayed for. No issue was framed with regard to the alleged date of entry of the Petitioners into the suit property. There is no material on record to show that the Petitioners entered into the possession of the suit land after the decree in T.S. No.23 of 2000 was passed. He, therefore, submits that the impugned order under Annexure-1 is not sustainable in the eyes of law and is liable to be set aside. 5. Although office note discloses that the notice on the sole Opposite Party is sufficient, but none has entered appearance on his behalf. 6. Considering the submission made by learned counsel for the Petitioners and on perusal of the record, more particularly the impugned order under Annexure-1, it is apparent that the D.Hr.- Opposite Party in the execution petition has categorically stated that after passing of the decree for permanent injunction, the Petitioners tried to forcibly entered into the suit land for which the Opposite Party had initiated Misc. Case No.61 of 2018 under Section 144 Cr.P.C. before the Sub-Divisional Magistrate-cum- Sub-Collector, Balliguda. Upon consideration of the materials on record, a prohibitory order was passed on 4th July, 2018 restraining the Petitioners from entering into the suit land. However, disobeying the said prohibitory order, the Petitioners forcibly entered into the suit land on 2nd September, 2018 and started construction over the suit property. Although the Petitioners stated in their objection that they are residing over the suit property for more than twelve years, but there is no Page 3 of 5 // 4 // denial to the claim made in the execution petition to the effect that a prohibitory order was passed on 4th July, 2018 by the Sub- Collector, Balliguda in a proceeding under Section 144 Cr.P.C., which itself shows that the Petitioners were not in possession over the suit land till 4th July, 2018. Law is well settled that while executing the decree of permanent injunction, if it is found that D.Hr.-Opposite Party has been dispossessed from the suit land, the Executing Court has ample power to restore the suit land in executing the said decree. 7. Mr. Satapathy, learned counsel for the Petitioners does not dispute the position of law. But, it is submitted that the D.Hr.-Opposite Party should have established that the Petitioners have entered into the possession over the suit land on 2nd September, 2018, which has neither been discussed nor any finding to that effect has been recorded. Since it is established that till 4th July, 2018, the Petitioners were not in possession over the suit land, it can be safely concluded that the petition for execution is not barred by limitation. Admittedly, the decree of permanent injunction is against the Petitioners. Instead of respecting the decree, they have disobeyed the same and forcibly entered into the suit property. Thus, learned Executing Court is not denuded of the power to restore the possession of the suit property to the D.Hr.-Opposite Party. As such, learned trial Court has committed no error in directing the Petitioners to give vacant possession of the suit land within a period of one month from the date of the impugned order. Page 4 of 5 // 5 // 8. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Page 5 of 5