The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1055 of 2024 Bandana Dash Petitioner Mr. A.P. Bose, Advocate …. -Versus- Raghunath Badatiya …. Opposite Party None
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 06.02.2025 Order No. 01. 1. 2. Heard Mr. Mr. Bose, learned counsel for the petitioner. No notice need be issued to the opposite party as the matter is disposed of at the stage of admission. 3. Instant petition is filed by the petitioner challenging the impugned order under Anexure-1 dated 16th August, 2024 passed in connection with FAO No.05 of 2023 by the learned Additional District Judge, Khallikote and further to affirm the order dated 11th May, 2023 at Annexure-2 in I.A. No.22 of 2022 arising out of C.S. No.02 of 2022 by the learned Senior Civil Judge, Khallikote, Ganjam on the grounds stated therein. 4. Mr. Bose, learned counsel for the petitioner submits that in so far as the interest acquired by the petitioner, the dispute inter se parties with regard to the subject would be subservient to the decree in C.S. No.12 of 2013, wherein, learned Civil Court decreed it in part and declared the impugned sale deed of the year, 2012 to be void to the extent vis-(cid:224)-vis the share of the opposite party, who was plaintiff therein. It is further submitted by Mr. Bose, learned Page 1 of 4 counsel for the petitioner that the decree in the said suit was not challenged by the opposite party, hence, the findings rendered therein are conclusive and final. The further submission is that the opposite party, thereafter, instituted the suit in C.S. No.02 of 2022 seeking the self-same. As further submitted, in the said suit, the opposite party moved an application under Order-39 Rules 1 & 2 CPC seeking injunction against the petitioner and the same was disposed of by the learned Court below in I.A. No.22 of 2020 and after an elaborate discussion, considering the pleadings of the parties, injunction was refused vide Annexure-2, however, the same was interfered with in appeal by the learned Court below substituted by an order of status quo in respect thereof. The contention of Mr. Bose, learned counsel for the petitioner is that in view of the decree in C.S. No.12 of 2013, constructive res judicata would apply and apparently, taking cognizance of the said aspect, the Court of first instance declined to pass an order of injunction as it was applied for by the opposite party but it was overturned in FAO No.05 of 2023 followed by an order of status quo, which is not legally tenable and hence, liable to be set aside. 5. Perused the impugned order as at Annexure-1. The order dated 11th May, 2023 at Annexure-2 in I.A. No.22 of 2022 is also gone through. The pleadings of the opposite party as at Annexures- 3 and 6 are also perused. 6. In fact, an application under Order 39 Rules-1 & 2 CPC was at the instance of the opposite party, wherein, the petitioner filed the show cause i.e. Annexure-5 and considering the same, the learned Senior Civil Judge, Khallikote, Ganjam passed the order under Anexure-2. As earlier stated, the said order under Order 39 Rules-1 & 2 CPC was unsettled in FAO No.05 of 2023 as per Page 2 of 4 Annexure-1. The contention of Mr. Bose, learned counsel for the petitioner is that existence of a decree in C.S. No.12 of 2023, even though, have been taken judicial notice by learned Additional District Judge, Khallikote, Ganjam but it was followed by an order of status quo. In fact, it is pleaded that the decree was not challenged by the opposite party and the alleged sale deed is in question was held to be invalid, so far as the interest of the opposite party is concerned and not to bind him, any such further transfer by the vendor in favour of the petitioner could not have been interfered with by an order of status quo. As a matter of fact, it is the contention of Mr. Bose, learned counsel for the petitioner that even though, there has no specific ground opposing injunction at the instance of the opposite party and that in view of the decree in C.S. No.12 of 2023, any such challenge in C.S. No.02 of 2022 would amount to constructive res judicata, as there has been no bar for the vendor of the petitioner to deal with the subject excluding the interest of the opposite party. The Court is in agreement with such contention, however, is of the view that since such an aspect has not been gone into in detail with a finding in that regard in juxtaposition to the decree in C.S. No.12 of 2023, the conclusion is that the impugned order in FAO No.05 of 2023 should be set aside with a direction to the learned Additional District Judge, Khallikote, Ganjam to exam it afresh. In other words, as the decree in C.S. No.12 of 2013 is confined to the interest of the opposite party and there has been no decree vis-(cid:224)-vis the sale deed in its entirety to have been declared as invalid and it was not challenged by the opposite party, such question is required to be reconsidered in appeal. 7. Hence, it is ordered. Page 3 of 4 8. In the result, the CMP stands disposed of with the direction to the learned Additional District Judge, Khallikote, Ganjam to freshly consider the plea of the petitioner on the anvil of the decree in C.S. No.12 of 2023 and thereafter, to pass appropriate orders in FAO No.05 of 2023 as per and in accordance with law. As a necessary corollary, the impugned order under Annexure-1 is hereby set aside with the direction as aforesaid to be complied with at the earliest preferably within a period of two weeks from the date of receipt of a copy of this order. The Court has made it clear that the hearing shall be accomplished in the immediate presence of the opposite party providing opportunity of hearing to both the sides. 9. In the circumstances, however, there is no order as to costs. 10. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC,CTC Date: 11-Feb-2025 12:52:44 Page 4 of 4