The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1152 OF 2015 Golak Bihari Biswal and another …. Petitioners Mr. Rajjeet Roy, Advocate -versus- Nilima Bhattacharjee and another …. Opp. Parties Mr. Prasanjeet Mohapatra, Advocate (For Opp. Party No.1) Mr. Dayananda Mohapatra, Advocate (For BDA) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 22.06.2023 7. 1. This matter is taken up through hybrid mode. 2. This CMP has been filed with a prayer to direct learned Civil Judge (Senior Division), Bhubaneswar to issue direction to the Bhubaneswar Development Authority-Opposite Party No.2 to remove unauthorized construction over the suit property and to provide all support for processing the execution of the lease-cum- sale deed by the Nazir appointed by the Executing Court in favour of the Petitioners. 3. This CMP arises out of an execution proceeding pursuant to the decree passed in C.S. No.896 of 2008 filed by the Petitioners for specific performance of contract and for permanent injunction against the Opposite Parties. The suit was decreed vide judgment and decree dated 17th May, 2011 and 21st May, 2011 respectively (Annexures-1 and 2 respectively) passed by learned Civil Judge (Senior Division), Bhubaneswar with a direction as under: Page 1 of 6 // 2 //
Legal Reasoning
“The suit is decreed on contest against the defendants but in the circumstances without cost (sic). The defendant No.1 is directed to execute and register the sale deed in respect of the suit property in favour of the plaintiffs after receiving the balance consideration amount from the plaintiffs within two months hence, failing which the plaintiffs are at liberty to take recourse to law. The possession of the plaintiffs over the suit property is confirmed. The defendant No.1 is permanently restrained from transferring the title and possession of the suit property to anybody else other than the plaintiffs. Advocate’s fee be assessed at the contested scale.” 4. As the Defendant-Opposite Party No.1 did not comply with the said decree, the Petitioners filed Execution Case No.15 of 2012. In the execution proceeding, a petition was filed by the Petitioners on 9th July, 2014 with a prayer to direct the B.D.A.- Opposite Party No.2 to change the allotment of the suit house in the name of the D.Hrs-Petitioners and grant permission to execute the Lease-cum-Sale deed in their favour stating inter alia that on 26th July, 2012, they (Petitioners) deposited the balance consideration amount of Rs.2,08,200/- payable to the Defendant- Opposite Party No.1 in Court. Considering such application, learned executing Court vide its order dated 22nd July, 2014 (Annexure-4/1) taking note of the fact that the B.D.A. had no objection to the prayer made in the petition filed by the Petitioners, directed the Petitioners to take steps to get necessary permission and change of allotment in respect of the suit property for execution of the deed in their favour. Subsequently, on an application filed by the Petitioners under Order XXI Rules 32(5) and 34 CPC, learned executing Court vide its order dated 16th October, 2014 (Annexure-5/1) directed B.D.A. to consider and Page 2 of 6 // 3 // fulfill all necessary formalities for execution of the lease-cum-sale deed on behalf of the Defendant No.1. It was also directed that the Petitioners should submit all necessary documents before the B.D.A. for necessary permission and completion of formalities. Pursuant to the filing of draft sale deed by the D.Hrs, learned executing Court vide its order dated 10th February, 2015 (Annexure-6) authorised the Nazir of the Civil Court to execute the sale deed on behalf of the Court and the Petitioners were also directed to deposit the prescribed fee for execution and registration of the sale deed. 5. Subsequently on a petition dated 20th June, 2015 filed by the Petitioners with a prayer to direct the B.D.A.-Opposite Party No.2 to remove the unauthorized construction in the suit house, learned executing Court vide order dated 28th July, 2015 under Annexure-9 refused to entertain the same holding that the executing Court cannot go behind the decree to pass such an order as no such direction has been made in the decree put to execution. Since there was delay in execution of the lease-cum-sale deed, the Petitioners finding no other alternative moved the present CMP with the aforesaid prayer. The said CMP was disposed of vide order dated 23rd September, 2015 with the following order:
Legal Reasoning
“Heard Mr.R.Roy, learned counsel for the petitioners, and Mr.D.Mohapatra, learned counsel appearing for O.P.2- Bhubaneswar Development Authority. The petitioners have filed this Petition with a prayer to direct the learned Civil Judge (Sr.Divn.), Bhubaneswar to forthwith direct O.P.2-B.D.A. to remove the unauthorized construction over the suit property and provide all support for processing the execution of the lease-cum-sale deed by the Nazir. In pursuance of the order of this Court dated 22.9.2013, Sri Ranjan Kumar Das, Secretary of Page 3 of 6 // 4 // Bhubaneswar Development Authority appears before this Court today and files his affidavit stating therein to accord NOC subject to the following conditions "I) Deposit of betterment fees and other fees for 3rd party transfer as agreed upon by the petitioner in his letter dated 28.4.2015 which shall be intimated to him within 15 days from today. shall demolish II) The petitioner after execution of the unauthorized deed construction over the Government land and in the allotted plot within 30 days thereafter at his cost." the Mr.Roy, learned counsel for the petitioner, now agrees with the aforesaid terms and conditions and undertakes that the petitioner shall comply with the same. In view of such undertaking, I dispose of this Civil Misc. Petition with a direction to the learned Civil Judge (Sr.Divn.), Bhubaneswar to dispose of Execution Case No.15/2012 within one month from the date of receipt of the N.O.C. from the B.D.A. Personal appearance of Mr.Das is dispensed with. Issue urgent certified copy.” 6. Being aggrieved, the Opposite Party No.1 preferred W.A. No.64 of 2016 against the aforesaid order stating that she (Opposite Party No.1) was not given an opportunity of hearing in the CMP. Considering the rival contentions raised by learned counsel for the parties, this Court vide order dated 2nd April, 2019, holding the Writ Appeal to be maintainable, set aside the order dated 23rd September, 2015 passed in this CMP and remitted the matter back to learned Single Judge for hearing the matter afresh after affording reasonable opportunity of hearing to the Opposite Party No.1. Thus, the matter has come up for final disposal on merit. 7. At the outset, Mr. Roy, learned counsel for the Petitioners by filing a memo in Court prays for withdrawal of the CMP. Page 4 of 6 // 5 // 8. Mr. D. Mohapatra, learned counsel for the B.D.A.- Opposite Party No.2 does not have any objection to the same. 9. However, Mr. P. Mohapatra, learned counsel for Opposite Party No.1 vehemently objects to the prayer made by Mr. Roy, learned counsel for the Petitioners stating that after taking advantage of the order dated 23rd September, 2015, the Petitioners should not be allowed to withdraw the CMP. In the event, the prayer of the Petitioners is allowed for withdrawal of the CMP, then all action taken by the B.D.A. with regard to issuance of NOC should be withdrawn. 10. Mr. Roy, learned counsel for the Petitioners vehemently objects to the same stating that issuance of NOC has nothing to do with the prayer made in the CMP. Since the Petitioners seek to withdraw the CMP unconditionally, none of the Opposite Party could raise any objection to the same. The Opposite Party No.1, if aggrieved by any action taken/order passed by the B.D.A.- Opposite Party No.2 in respect of the suit property, she may initiate appropriate legal proceeding, if permissible in law. 11. Taking into consideration the submissions made by learned counsel for the parties, this Court is of the considered opinion that the CMP was filed with a prayer to direct learned executing Court to issue direction to the B.D.A. to remove unauthorized construction over the suit property and to provide support for execution of the lease-cum-sale deed. Issuance of NOC is one of the formalities for execution of the lease-cum-sale deed pursuant to the decree passed in C.S. No. 896 of 2008. The decree passed in favour of the Petitioners in C.S. No.896 of 2008 has not yet been set aside. Page 5 of 6 // 6 // 12. It is, however, submitted by Mr. Mohapatra, learned counsel for the Opposite Party No.1 that an application under Order IX Rule 13 C.P.C. to set aside the decree passed in C.S. No.896 of 2008 is still pending for consideration. This Court without expressing any opinion on the merits of such application observes that pendency of the application under Order IX Rule 13 C.P.C. will not be a bar for execution of the decree unless the decree is set aside or stayed by any competent court of law. Thus, any action taken by the BDA for execution of the lease-cum-sale deed by the Nazir appointed by the Court, cannot be objected to by the Opposite Party No.1 in the present CMP and for that prayer for withdrawal of the CMP cannot also be objected to. 13. On perusal of the memo dated 22nd June, 2023 filed in Court today, it appears that the Petitioner No.1 has expired in 2019 and Mr. Roy, learned counsel for the Petitioners does not have any further instruction in the matter. Hence, he wants to withdraw the CMP. 14. Since Mr. Roy, learned counsel for the Petitioners wants to withdraw the CMP unconditionally; this Court has no hesitation to allow such prayer.
Decision
15. Accordingly, the CMP stands disposed of as withdrawn. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Page 6 of 6 MADHU SMITA SAHOO Digitally signed by MADHUSMITA SAHOO Date: 2023.06.26 17:05:50 +05'30' ms