The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1402 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Prakash Chandra Ghadei and Others -versus- …. Petitioners Rabinarayan Acharya and Others … Opposite Parties Advocate(s) appeared in this case:- For Petitioners
Legal Reasoning
: Mr. S.S. Bhuyan, Advocate For Opp. Parties : Mr. B.P. Sarangi, Advocate For O.P. Nos.1 and 3 to 5 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 29th November, 2025 B.P. Routray, J. 1. Heard Mr. S.S. Bhuyan, learned counsel for the Petitioners and Mr. B.P. Sarangi, learned counsel for Opposite Parties 1 and 3 to 5. 2. It is stated that opposite party no.2 died in the meantime who is one of the petitioners in CMA No.157 of 2023. It is also submitted that since other petitioners in said CMA have been duly represented before this court as opposite parties 1 and 3 to 6, and CMP No.1402 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 till date no step for substitution has been taken in the CMA before
Decision
the executing court, present CMP can be disposed of considering representation of LRs of opposite party no.2 through other opposite parties. 3. Present CMP is directed against order dated 12th May, 2025 of learned Civil Judge (Senior Division), 2nd Court, Cuttack passed in CMA No.157 of 2023 (arising out of Execution Case No.19 of 2015), wherein the prayer of the petitioners in the CMA under Order 26 Rule 9 C.P.C. has been allowed. 4. Present petitioners being the DHrs in respect of decree dated 13th August, 2014 wherein the JDr No.1 was directed to vacate suit schedule B land appertaining area Ac.0.03 dec. and defendants 2 and 3 (JDr No.2 and 3) were directed to vacate the encroached are of Ac.0.01 dec. with such description of the decreed land. During pendency of the execution proceeding present opposite parties filed CMA No.157 of 2023 as per Rule 97 of Order 21 raising their objection against their dispossession. The cause shown by these 3rd parties who filed CMA No.157 of 2023 is that the original plaintiff being the land owner exchanged the suit land for use of road by all such purchasers of neighbouring lands owned by CMP No.1402 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 those 3rd party petitioners in the CMA. Pending adjudication of the claim against dispossession, a petition under Order 26 Rule 9 C.P.C. was filed by these 3rd parties for measurement of the land along with plot No.3374/4929 in mutation Khata No.1135/923 of Mouza Pubakhanda for proper identification and topography of the same. 5. The DHr objects said prayer on the ground that direction of the executing court to measure plot No.3374/4929 is beyond the scope of decree as the decree is in respect of suit schedule B and C lands, i.e. plot No.3374 and 3374/4658. 6. On the other hand it is submitted by present opposite parties that plot no.3374/4929 being exchanged to be used as part of the road in terms of schedule B and C land, it is incorrect to say that measurement of said plot would be beyond the scope of the decree. 7. Admittedly, the suit land under schedule B and C of the plaint is a part of suit schedule ‘A’ land being used for the purpose of road and as per the allegations the same was encroached by the defendants. Since present opposite parties who are the petitioners CMP No.1402 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 in CMA No.157 of 2023 have raised their claim against their dispossession from the suit land on the ground that the suit land was also used by them as road along with plot No.3374/4929, it is necessary to get measurement of all the lands that are used for the purpose of road by the DHr as well as by the opposite parties. The map appended to the plaint in this respect has been relied on by the opposite parties to justify such contention that plot No.3374/4929 presently forms a part of the road and part of schedule A property. 8. It is well known that scope of Rule 9 under Order 26 authorizes the court to exercise its discretion by local investigation in order to overcome the difficulty for elucidating the subject in dispute by measuring the disputed property through local investigation when it is found necessary. Usually when the dispute is with regard to demarcation of land or there is a boundary dispute, particularly when the evidence or material on record is insufficient or needs clarification, survey knowing commissioner may be appointed. At the same time it is also true that the power under Rule 9 of Order 26 cannot be used in order to collect evidences for the parties. CMP No.1402 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 9. It is seen from the present dispute that, the DHr has got the decree in his favour in respect of suit schedule B and C lands measuring Ac.0.04 dec. for use of the same which forms part of suit schedule A property. According to present opposite parties, who have raised their claim against dispossession, that, the land in Plot No.3374/4929 which also forms part of suit schedule ‘A’ property and has been exchanged to be used as a road along with suit schedule B and C property by the DHr as well as by other 3rd party petitioners. Therefore, keeping in view the nature of dispute raised in CMA No.157 of 2023 and the scope of decree dated 13th August, 2014, no impropriety is seen in the order of the learned trial court by allowing the prayer of the opposite parties to measure the suit schedule B and C lands along with plot No.3374/4929. It is because that according to the 3rd party petitioners in CMA No.157 of 2023 said plot also forms part of the road to be used by the HDr and all other neighbouring land owners. Thus it cannot be said that by directing measurement of Plot No.3374/4929 along with suit schedule B and C lands the learned Executing court has travelled behind the decree since the claim of the petitioners in CMA No.157 of 2023 is to the effect CMP No.1402 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 that Plot No.3374/4929 also forms part of the road being used by all such parties. 10. In the result the CMP is dismissed. 11. It is made clear that any such discussion or finding made in the present order shall not influence the merits of the claim of the DHr, JDr and others concerned, in the execution case as well as in the CMA. ( B.P. Routray) Judge M.K. Panda/P.A CMP No.1402 of 2025 Page 6 of 6