The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Nov-2023 15:22:02 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1028 of 2023 Prasanna Kumar Patra …. Petitioner Mr. Banshidhar Baug, Advocate -versus- Sibapad Sen and others …. Opp. Parties Mr. Samir Kumar Mishra, Senior Advocate being assisted by Miss Susrita Sahoo, Advocate (For Opposite Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 21.11.2023 3. 1. This matter is taken up through Hybrid mode. 2. Memos along with certain documents filed in Court by learned counsel for the parties are taken on record. Copies of the same are stated to be exchanged between learned counsel for the parties. 3. Order dated 14th August, 2023 (Annexure-5) passed by learned 1st Additional Senior Civil Judge, Balasore in Execution Case No.21 of 2017 is under challenge in this CMP, whereby learned executing Court directed the DHr. to take necessary steps for attachment of property of the JDr. for recovery of the decretal amount. 4. Mr. Baug, learned counsel submits that the Petitioner is one of the JDrs. in the execution proceeding and the property sought to be attached is under attachment with Opposite Party No.3- State Bank of India. In spite of the same, an application for attachment of the said property was filed. Both the JDr. No.1 Page 1 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Nov-2023 15:22:02 // 2 // and Opposite Party No.3-Bank filed their respective objections to the said application. But without taking note of the objection filed by Opposite Party No.3-Bank that the property in question is mortgaged with the Bank vide Equitable Mortgage No.94/1 against loan dated 3rd January, 1994 and the said loan has not yet been liquidated, the impugned order has been passed. It is his submission, once a charge has already been created by the Opposite Party No.3-Bank by accepting the mortgage of the property in question, further charge in respect of the same cannot be created by attaching the same in the instant Execution Case. This material aspect was lost sight of by learned executing Court while adjudicating the matter. Learned executing Court taking note of the observation made by this Court in CMP No.970 of 2022, which disposed of vide order dated 26th October, 2022, proceeded to pass the impugned order. This Court, while disposing of CMP No.970 of 2022, held as under:- “5. Upon hearing learned counsel for the Petitioner and on perusal of the preliminary decree passed in C.S. No. 501 of 2010 (Annexure-2), it appears that the Court has in unambiguous terms directed for recovery of Rs.6,72,000/- from Defendants-Opposite Party Nos.1 and 2. It is also submitted by Mr. Mishra, learned counsel for the Petitioner that in the suit itself, the Defendants have taken a stand that the property was mortgaged with the State Bank of India, Main Branch, the Balasore-Opposite Party No.3. Thus, after preliminary decree, such an objection its loses significance. Hence, the documents relating to loan account (statement) is not required to be considered in an execution case. In that view of the matter, I find that learned trial Court has committed no error in refusing to entertain such an application.” 4.1 It is his submission that this Court in CMP No.970 of 2022 was considering the correctness of the order passed by the Page 2 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Nov-2023 15:22:02 // 3 // executing Court in rejecting an application filed by the DHr.- Opposite Party No.1 to direct the Bank, namely, Branch Manager, State Bank of India, Balasore to produce the details of loan account in respect of the Equitable Mortgage No.94/1 against the loan dated 3rd January, 1994. 5. In course of argument of CMP No. 970 of 2022, learned counsel for the DHr. (Petitioner therein) had raised an objection that the statement of the said loan account is necessary for hassle-free execution of the decree. The Court rejecting such contention had observed as above. But, learned executing Court misconstruing the same to the effect that the loan documents are not required to be considered in the execution proceeding, directed for attachment of the property. Hence, this CMP has been filed. 6. Mr. Mishra, learned Senior Advocate appearing for DHr.-Opposite party No.1 submits that there is no material on record to ascertain as to whether the mortgage has been redeemed in the meantime or not. The Opposite Party No.3- Bank only stated that the loan has not yet been liquidated, but there is nothing on record to show that the charge in respect of the property in question is still continuing. He further submits that after adjustment of the loan dues, the rest of the amount can be recovered by attaching and putting the property in question to sale. Thus, learned executing Court has committed no error in passing the impugned order. Hence, he prays for dismissal of the CMP. Page 3 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Nov-2023 15:22:02 // 4 // 7. Considering the submissions of learned counsel for the parties and on perusal of record, it appears that while considering the issue of attachment of the property in question, learned executing Court did not at all take into consideration the objection raised by Opposite Party No.3-Bank to the effect that the property in question is encumbered by Equitable Mortgage No.94/1 against loan dated 3rd January, 1994 advanced to the JDr.-Petitioner. It is also stated therein that the loan amount has not yet been liquidated. Thus, it prima facie appears that the property still stands mortgaged with the Bank. 7.1 This Court, while disposing of CMP No.970 of 2022 was considering the validity of an order rejecting an application filed by the Opposite Party No.1-DHr. to direct the Opposite Party No.3-Baranch Manager, State Bank of India, Balasore to produce the details of the loan account (statement in respect of Equitable Mortgage No.94/1). This Court in CMP No. 970 of 2022, while confirming the order passed by the executing Court, rejected the objection raised by learned counsel for the Petitioner holding that the loan statement of the said loan account is not necessary to be considered in the execution case. Thus, the observation made by this Court should not be construed that even if the property in question is in mortgage, the same can be attached for execution of the decree. Neither the objection raised by the Bank was taken into consideration by learned executing Court nor the observation made by this Court has been construed in its proper perspective while passing the impugned order. Page 4 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Nov-2023 15:22:02 // 5 // 8. In that view of the order, the impugned order under Annexure-5 is not sustainable and is set aside. The matter is remitted to the executing Court to adjudicate the question of attachment of the property afresh giving opportunity of hearing to the parties concerned and considering the respective objections raised by the parties. 9. Interim order dated 11th October, 2023 passed in IA No.998 of 2023 stands vacated. Issue urgent certified copy of the order on proper application. s.s.satapathy (K.R. Mohapatra) Judge Page 5 of 5