The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Dec-2023 18:58:33 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1121 OF 2023 Nayana Sahu @ Das and others …. Petitioners Mr. Amit Prasad Bose, Advocate -versus- Renubala Sahu and others CORAM:
Legal Reasoning
…. Opp. Parties Mr. A.K. Sahoo, Advocate Order No. 01. 1. 2.
Decision
JUSTICE K.R. MOHAPATRA ORDER 05.12.2023 This matter is taken up through hybrid mode. Order dated 3rd August, 2023 (Annexure-1) passed by learned Civil Judge (Junior Division), Second Court, Cuttack in CMA No.42 of 2011 is under challenge in this CMP, whereby an application filed by the Decree holders-Opposite Parties for amendment of the execution petition filed under Order XXI Rule 32 CPC, has been allowed. 3. Mr. Bose, learned counsel for the Petitioners submits that Title Suit No58/117 of 1955/1951 was filed for injunction and it was decreed in favour of the Opposite Parties-Decree holders. Subsequently, Execution case No.90 of 1973 was filed, which was disposed of on 11th June, 1975 on satisfaction of the decree. Subsequently, alleging that the Petitioners have encroached upon the suit property, the CMA No.42 of 2011 has been filed under Order XXI Rule 32 CPC alleging further encroachment by the Petitioners. Previously, the petition in CMA No.42 of 2011 has been amended at the instance of the Opposite Parties-Decree holders. When the evidence in the said CMA was going on, the Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Dec-2023 18:58:33 // 2 // Opposite parties again filed an application under Order VI Rule 17 CPC for amendment of the CMA, which has been allowed. 4. It is submitted by Mr. Bose, learned counsel for the Petitioners that although a written objection was filed to the said application, but the same was not taken into consideration by the Executing Court. It is specifically alleged that the proposed amendment is not subsequent event which occurred during cross- examination of P.W.1 and as such, the same should not have been entertained. The Decree-holders by way of amendment want to incorporate certain new facts, which is not permissible in law. Further, the application for amendment being filed in the midst of recording of the evidence of P.W.1, it should not have been allowed. Learned Executing Court, without considering the objection made, passed the impugned order. Hence, this CMP has been filed. 5. Taking note of submission made by learned counsel for the Petitioners and perusal of the record, it appears that proposed amendments are as under: “ PROPOSED AMENDMENT 17. That during pendency of the above case and at the request of the petitioners an Amin has visit the spot and made inquiry who prepared a report on 05.12.2022 wherein it reveals that the passage in question is less than 2 feet and the report of the commissioner with the maps have already been filed in this case. The opposite parties have also destroyed the drain in which the drain water of the house used to discharge. 18. In the meantime i.e on 29.04.2021, the Cuttack Development Authority in U.C Case No- 16/2011 passed an order for demolition of the house/building of the opposite parties over plot no-1909, 1906 and 1906/3358 for unauthorized construction and such construction have Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Dec-2023 18:58:33 // 3 // encroached on the passage in question. The certified copy of the order has also been filed in this case in the court. B. Paragraph no.s 17 & 18 of the petition may be petition may be corrected as paragraph 19 & 20 respectively.” 6. It appears that the amendment sought for had taken place after filing of the CMA. Of course, it appears that the objection filed by ht Petitioners to the petition for amendment has not been taken into consideration by learned Executing Court. Further, the provision of Order VI Rule 17 CPC is also not applicable to an execution proceeding. It is Order XXI Rule 17 read with Section 153 CPC, which confers the power on the Executing Court to entertain an application for amendment. Thus, there is no illegality in entertaining an application for amendment in CMA No.42 of 2011. 7. It, however, appears that the objection raised by the Petitioners was not taken into consideration by learned Executing Court while allowing such amendment. The objection was essentially with regard to the fact that the application for amendment was filed in the midst of recording of the evidence of P.W.1. The restrictions, as provided in proviso to Order VI Rule 17 CPC are not applicable to the execution case. Thus, for the interest of justice and to see that the decree holders enjoy the fruit of the decree, learned Executing Court can entertain an application at any stage, if occassion so warrants. 8. Of course, it would have been be proper on the part of the Executing Court to discuss the objection raised by the Petitioners. But, this Court finds that the proposed amendments are the events subsequent to filling of CMA No.42 of 2011. Thus for the interest of justice and just adjudication of the execution case, learned Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Dec-2023 18:58:33 // 4 // Executing Court has committed no error in allowing such application. Since the application for amendment of CMA has been allowed, the Petitioners should be given a liberty to file additional objection to the consolidated CMA. 9. It is, however submitted by Mr. Sahoo, learned counsel for Decree holders-Opposite Parties that such liberty has already been given and the CMA is posted for filing of additional objection. 10. Since the CMA is of the year 2011, learned Executing Court should make an endeavour to see that it is disposed of at an early date. 11. With the aforesaid observation and without interfering with the impugned order, the CMP is disposed of. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4