Ashok Kumar Dash v. Sashank Sekhar Dash & Ors.

Mr. S.S. Bhuyan, Advocate -versus- Sashank Sekhar Dash and others …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 26.06.2023

1. This matter is taken up through hybrid mode.

The Petitioner in this CMP prays for a direction for early disposal of final decree proceeding in C.S. No.1079 of 2016 as well as CMA No.99 of 2022 filed by the legal heirs of Defendant No.3 under Order IX Rule 13 C.P.C.

Mr. Bhuyan, learned counsel for the Petitioner submits that C.S. No.1079 of 2016 was filed for partition and preliminary decree has already been passed. The Defendant No.3 was set ex parte in the suit. After the preliminary decree was passed, final decree proceeding has already been initiated at the instance of the Petitioner. Upon receipt of the notice, the Opposite Party Nos. 6 to 8, namely, legal heirs of Defendant No.3, filed an application under Order IX Rule 13 C.P.C. in CMA No. 99 of 2022 for setting aside ex parte decree against Defendant No.3. The said application is still pending in the Court of learned Civil Judge (Senior Division), Bhubaneswar.

3.1 It is submitted by Mr. Bhuyan, learned counsel that the Petitioner being the sole Opposite Party in CMA No. 99 of 2022 // 2 // has already entered appearance. Thus, CMA No. 99 of 2022 is ready for hearing. It is further submitted that the Court can proceed with both the petitions under Order IX Rule 13 C.P.C. as well as final decree proceeding simultaneously. He, therefore, prays for a direction to dispose of both the proceedings.

Taking into consideration the facts and circumstances of the case and the nature of prayer made, this Court is of the considered opinion that since an application under Order IX Rule 13 C.P.C. in CMA No. 99 of 2022 is still pending consideration, learned trial Court should make an endeavour for early disposal of the said application before proceeding with the final decree proceeding in C.S. No.1079 of 2016.

In view of the submission made by learned counsel for the Petitioner that CMA No. 99 of 2022 is ready for hearing and that there is no legal impediment for early disposal of the same, this CMP is disposed of with a direction that in the event the Petitioner moves an application for early disposal of CMA No.99 of 2022 stating the grounds therein, learned trial Court should consider the same expeditiously and proceed with the matter accordingly. It is also made clear that learned trial Court should make an endeavour for early disposal of CMA No.99 of 2022 and then proceed with the final decree proceeding in C.S. No.1079 of 2016. Urgent certified copy of this order be granted on proper application. Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Jun-2023 12:10:50 (K.R. Mohapatra) Judge