The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Oct-2024 17:18:11 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.863 OF 2024 Satyabrata Dhir …. Petitioner Mr. Amit Kumar Patra, Advocate -versus- Subashini Pattnaik …. Opp. Party Mr. Dwarika Prasad Mohanty, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 08.10.2024 3. 1. This matter is taken up through hybrid mode. 2. Order dated 27th June, 2024 (Annexure-3) passed in CMA No.660 of 2000 (arising out of Execution No.22 of 1997/52 of 1997) is under challenge in this CMP, whereby learned Civil Judge (Senior Division), Bhubaneswar rejected an application to recall the order dated 5th April, 2023 by which learned executing Court accepted the paper publication of notice against Opposite Party Nos.2 to 32 in the CMA. 3. Mr. Patra, learned counsel, at the outset, prays for an adjournment submitting that Mr. Debakanta Mohanty, learned arguing counsel for the Petitioner is out of station. 4. The matter arises out of an execution proceeding of the year, 1997 and CMA filed under Order XXI Rule 99 CPC is pending since 2000. 5. On last occasion, i.e., on 13th September, 2024, Mr. Mohanty, learned counsel for the Opposite Party in course of hearing of the matter submitted that the order sheet in the aforesaid CMA is necessary for just adjudication of the CMP. Page 1 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Oct-2024 17:18:11 Accordingly, the matter was posted to 8th October, 2024, i.e., // 2 // today. 6. In view of the above, this Court is not inclined to entertain the prayer made by learned counsel for the Petitioner for adjournment in view of the fact that the Court has to consider the matter as to whether the substituted service of notice on Opposite Party Nos.2 to 32 in CMA No.660 of 2000 was proper or not, which can be done by examining the order sheet of the said CMA, certified copy of which is filed today in Court and is taken on record. 7. Mr. Patra, learned counsel for the Petitioner submits that without impleading the D.Hr and J.Dr, CMA No.660 of 2000 was filed. Challenging the same, the Petitioner preferred W.P.(C) No.25464 of 2013, which was disposed of on 3rd December, 2013 with a direction that the Petitioner in CMA No.660 of 2000 (Opposite Party herein) to implead the D.Hr and J.Dr in the said CMA and serve notice to them. Thereafter the D.Hr and J.Dr were made parties to CMA No.660 of 2000 and notices were served on them through Special Messenger. Thereafter, an application was filed by the present Petitioner to recall the said order stating that the notice on the said Opposite Party Nos.2 to 32 was not sufficient. The said application was rejected by learned executing Court. Assailing the same, the Petitioner moved this Court in CMP No.585 of 2014, which was disposed of on 14th May, 2014 directing as under: In view of the above and considering the fact that “4. technicalities of law should be permitted to hamper in the administration of justice between the parties, this Court disposes of this petition with a direction to the Page 2 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Oct-2024 17:18:11 // 3 // learned Civil Judge (Senior Division), Bhubaneswar to issue notice both ways to the newly added opposite party Nos.2 to 32 and dispose of C.M.A. No.660 of 2000 on technicalities, as its own merits expeditiously as possible.” instead of 8. Pursuant to the direction of this Court, learned executing Court directed the Opposite Party No.1 to file the requisites for issuance of notice to Opposite Party Nos.2 to 32. Accordingly, steps were taken by Opposite Party No.1 for service of notice on Opposite Party Nos.2 to 32. Vide order dated 19th January, 2016 in the said CMA, learned executing Court held notice on Opposite Party Nos.7, 17, 23 and 28 to be sufficient, as the AD was received after due service. However, the said Opposite Parties were absent on call. No step was taken on their behalf. Hence, Opposite Party Nos.7, 17, 23 and 28 were set ex parte. Further the CMA was adjourned awaiting S.R. from Opposite Party Nos.2 to 6, 8 to 13, 15, 16, 18, 20, 22, 24 to 27 and 29 to 32. 8.1 Since neither postal AD returned from them nor could the notice be made sufficient within a reasonable time, the Opposite Party No.1 on 30th August, 2016 prayed for taking out notice on the aforesaid Opposite Parties by Special Peon. Accordingly, the CMA was posted to 8th September, 2016 for filing Special Peon cost and requisites. As it could not be possible on the part of Opposite Party No.1 (Petitioner in CMA) to file the requisites and cost for issuance of notice through Special Peon on the above named Opposite Parties for a considerable period, he filed an application to take out substituted notice on those Opposite Parties under Order V Rule 20 CPC. The said application was Page 3 of 6 // 4 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Oct-2024 17:18:11 allowed vide order dated 9th May, 2022. Accordingly, draft publication was submitted by Opposite Party No.1 on 12th July, 2022. The said notice was published in daily newspaper ‘The Sambad’. Accordingly, the matter was posted to 5th April, 2023 for consideration of the publication of notice in the newspaper. 9. Mr. Patra, learned counsel for the Petitioner submits with vehemence that the paper publication was made in the Bhubaneswar edition of the Sambad, which has no circulation in the locality, because of Opposite Party belongs to Jagatsinghpur District. However, considering such publication, learned executing Court held notice on the above named Opposite Parties to be sufficient vide its order dated 5th April, 2023. He also assailed the order under Annexure-3 on several other grounds, which shall be dealt with in detail here-in-below. It is his submission that learned executing Court did not consider the same in its proper perspective. He, therefore, prays for setting aside the order impugned herein. 10. Upon hearing learned counsel for the parties and on perusal of the case record including the order sheet of the CMA filed today in Court, it appears that no objection was raised by the Petitioner to the order allowing petition under Order V Rule 20 CPC to take notice by paper publication or when the draft publication was accepted or immediately after the notice published in the newspaper was held to be sufficient on the above named Opposite Parties vide order dated 5th April, 2023. It is on 20th November, 2023, the Petitioner filed an application to recall the order dated 5th April, 2023 stating that this Court in Page 4 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Oct-2024 17:18:11 // 5 // CMP No.585 of 2014 had directed to take out notice by both ways; the publication was not made through Nazir of Jagatsinghpur; the paper publication was made in Bhubaneswar edition of the newspaper; some of the Opposite Parties out of Opposite Party Nos.2 to 32 are dead and the Opposite Party No.1 did not comply with the direction and the substituted notice on Opposite Party Nos.2 to 32 were held to be sufficient without complying with the direction of this Court in CMP No.585 of 2014. 11. On perusal of the impugned order under Annexure-3 and materials on record, it appears that the publication was made in the Cuttack edition of ‘The Sambad’, which has wide circulation in the district of Jagatsinghpur. There is no material placed before learned executing Court to show that any of the Opposite Parties out of Opposite Party Nos.2 to 32 died prior to publication of the notice in the newspaper. Further the application was filed on 20th November, 2023 when examination of one of the witnesses had already started. It appears from the order sheet of the CMA that initially the Opposite Party No.1 took notice on Opposite Party Nos. 2 to 32 in both ways. It was also made sufficient on some of the Opposite Parties therein. When notice on other Opposite Parties to the CMA could not be served, the Opposite Party No.1 sought for service of notice through substituted mode. Hence, no exception should be taken to the same. 12. Facts remains that the Petitioner is contesting the CMA throughout and he has raised the objection at a belated stage that Page 5 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Oct-2024 17:18:11 // 6 // too after commencement of trial in CMA No.660 of 2000, when one of the witnesses was being examined. No objection to order dated 5th April, 2023 was raised immediately after it was passed. The Petitioner waited for more than seven months to file an application. As discussed above, the objection raised by the Petitioner was without any substance. Further, CMA No.660 of 2000 has been filed under Order XXI Rule 99 CPC and the execution case is of the year, 1997. As such, this Court is not inclined to interfere with the impugned order under Annexure-3, as it has been passed considering the materials on record. 13. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 6 of 6