Execution Case No. 09 of 2022 · 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: 01-Aug-2024 14:59:15 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1227 OF 2023 Panchanana Jena Rekha Jatania …. Mr. Susanta Kumar Dash, Advocate -versus- Petitioner Opp. Party …. Mr. Vivekananda Jena, Advocate CORAM: JUSTICE K.R. MOHAPATRA ORDER 31.07.2024 Order No. 06. 1. This matter is taken up through hybrid mode. 2. Petitioner in this CMP seeks to assail the order dated 16th September, 2023 (Annexure-3) passed in RFA No.111of 2022 whereby learned 1st Additional District Judge, Rourkela rejected a petition filed by the Appellant-Petitioner under Order XLI Rule 5 CPC to stay further proceeding of Execution Case No.09 of 2022 pending in the Court of learned Civil Judge, (Senior Division), Rourkela during pendency of the appeal.
Legal Reasoning
3. Mr. Dash, learned counsel for the Petitioner submits that being aggrieved by the judgment and decree dated 24th June, 2022 and 30th June, 2022 respectively passed by learned Civil Judge, (Senior Division), Rourkela in CS No.195 of 2016, the Petitioner has filed RFA No.111 of 2022, which is pending for consideration. 3.1. The suit was decreed with the following order: “The suit be and the same is decreed on contest against the defendant, in the circumstances with no cost. The defendant is hereby directed to vacate the suit shop room and to hand over the vacant possession of the same to the plaintiff within three months from the date of judgment. The defendant is also directed to pay at the rate of Rs.13,500/- per month since 16.06.2014 to the date of delivery of vacant possession of suit shop room and out of that monthly 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: 01-Aug-2024 14:59:15 payment, an interest free security/advance/deposit of Rs. Vi5,00,000/-(Five Lakh) is to paid be adjusted and rest amount will be to the plaintiff within three months from the date of judgment, failing which the plaintiff is at liberty to realize the same and evict the defendant through the process of Law. Advocate fees will be assessed at the contested scale.” 4. After disposal of the suit, the Opposite Party initiated Execution Case No.09 of 2022, which is pending in the Court of learned Civil Judge, (Senior Division), Rourkela. Thus, after receiving notice in the execution case, the Petitioner filed a petition under Order XLI Rule 5 CPC to stay further proceeding of the execution case till disposal of the appeal. Learned appellate Court holding that the application was filed in delay, refused to entertain the application filed under Order XLI Rule 5 CPC with an observation that the Petitioner is trying to linger the proceeding of the execution case and no amount of security or money can ever compensate the decree holder as a pre-condition of stay of execution proceeding. Being aggrieved, this CMP has been filed. 5. It is submitted by Mr. Dash, learned counsel that the Petitioner received the notice to appear in the execution case on 22nd July, 2023 and the petition for stay under Order XLI Rule 5 CPC was filed on 11th August, 2023. Thus, there is no delay in filing the petition under Order XLI Rule 5 CPC as observed by learned appellate Court. The Petitioner is ready and willing to furnish the security for satisfaction of the decree. He further submits that pursuant to the direction of this Court vide order dated 12th December, 2023 in IA No.1175 of 2023, the Petitioner has already deposited a sum of Rs.5 Lakhs within the stipulated period before learned Executing Court. The Petitioner is ready and willing to furnish property security for rest of the amount. He, therefore, submits that the interim order made on 12th December, 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: 01-Aug-2024 14:59:15 2023 may be made absolute by directing the Petitioner to furnish adequate security for satisfaction of the decree. 6. Mr. Jena, learned counsel for the decree holder-Opposite Party submits that the arrear amount accrued as per the judgment and decree would be more than 17 Lakhs by now. The Petitioner is also not paying the current monthly rent as directed by learned trial Court. The ratio decided in Rahul S. Shah vrs. Jinendra Kumar Gandhi and others, reported in (2021) 6 SCC 418, it is directed that endeavour should be made for disposal of the execution case within a period of six months. Since the Petitioner has not yet shown any intention to make payment of the arrear amount as well as current rent in respect of the suit property, the impugned order should not be interfered with. 7. Taking note of the submission made by learned counsel for the parties, this Court finds that the Petitioner has already deposited a sum of Rs.5 Lakhs as directed by this Court vide order dated 12th December, 2023 in IA No.1175 of 2023 arising out of this CMP. It is submitted by Mr. Jena, learned counsel for the Opposite Party-decree holder that the arrear amount would be more than 17 Lakhs. 8. In that view of the matter, this Court feels that the Petitioner should furnish some more cash security and also furnish property security for the rest of the amount for performance of the decree as may ultimately be binding on him. Without prejudice to the case of either of the parties, the Petitioner should also go on paying the rent as directed by learned trial Court in the judgment and decree impugned in the appeal. 9. Accordingly, this Court sets aside the impugned order under Annexure-3 and directs that there shall be stay for further 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: 01-Aug-2024 14:59:15 proceeding in Execution Case No.09 of 2022 pending in the Court of learned Civil Judge, (Senior Division), Rourkela till disposal of the appeal, i.e., RFA No.111 of 2022 pending in the Court of learned 1st Additional District Judge, Rourkela subject to deposit Rs. 3 Lakhs (Rupees Three Lakhs) before learned executing Court within a period of one month hence. On such deposit being made, learned Executing Court shall invest the same in a Fixed Deposit Scheme of any Nationalized Bank renewable from time to time until further orders by learned executing Court. The Petitioner shall also furnish the property security for the rest of the arrear amount to the satisfaction of learned executing Court. The Petitioner, without prejudice to the case of either of the parties, shall also go on paying the decree holder-Opposite Party a sum of Rs.13,500/- (Rupees Thirteen Thousand Five Hundred) per month as directed by learned Civil Judge, (Senior Division), Rourkela in its judgment passed in CS No.195 of 2016. 10. The amount of Rs.13,500/- (Rupees Thirteen Thousand Five Hundred) per month shall be paid to the decree holder- Opposite Party by 10th of every month starting from August, 2024 till disposal of the appeal, which shall be subject to the result of the appeal. 11. Keeping in mind the nature of dispute involved in the appeal, learned appellate Court is directed to take steps for early disposal of RFA No.111 of 2022.
Decision
12. The CMP is accordingly disposed of. Issue urgent certified copy of this order on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4