The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1265 OF 2022 Sarit Das Petitioner Mr. Gopinath Mishra, Advocate …. Punyaprava Das and others …. Opp. Parties -versus- Mr. Bibekananda Bhuyan, Advocate (For Opp. Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 01.03.2023 CMP NO. 1265 OF 2022 & CMP NO. 1266 OF 2022 3. 1. This matter is taken up through hybrid mode. 2. In CMP No.1265 of 2022, the Petitioner seeks to assail the order dated 5th May, 2022 passed by learned 1st Additional Senior Civil Judge, Balasore in Execution Case No. 66 of 2017 (arising out of C.S. No.716 of 2003-I), whereby a petition for stay of execution proceeding during pendency of the petition under Order IX Rule 13 C.P.C. in CMA No. 49 of 2018, has been rejected. 3. In CMP No. 1266 of 2022, the Petitioners seek to assail the order dated 4th January, 2020 passed by learned 1st Additional Senior Civil Judge, Balasore in Execution Case No.66 of 2017 (arising out of C.S. No.716 of 2003-I), whereby an application filed by the Defendants-Petitioners to recall the order dated 17th July, 2028, has been rejected. 4. In Execution Case No. 66 of 2017, the judgment and decree passed by learned 1st Additional Senior Civil Judge, Page 1 of 5 // 2 // Balasore in C.S. No. 716 of 2003-I was put to execution. The following order was passed therein: “The suit be and the same is partly decreed on contest against Defendant No.1 (Una), Defendant Nos.8, 9 & Ex-parte against Defendant No. 1(Ka) to (Gha) and (Cha), Defendant Nos. 3 to 7 & 10 to 19 but without any cost. It is hereby declared that the plaintiff along with Defendant No.3 have right, title interest over the schedule “B” suit land and they are entitled for eviction against Defendant No.1 series, Defendant Nos.12 to 19 from the shop rooms, and the plaintiff, Defendant No.3 are entitled for permanent injunction against the Defendant No.1 series, Defendant Nos.12 to 19 restraining them to interfere in the possession of the plaintiff and Defendant No.3 over the suit land after giving vacant delivery of possession of the suit land. The Defendant No.1 series, Defendant Nos.12 to 19 are directed to give vacant possession of the suit land to the plaintiff and Defendant No.3 within three months to pay hence, and each of compensation of Rs.20,000/- (twenty thousand) with interest @ 6% per annum from the date of filing of the suit till realization. In case of failure the plaintiff and Defendant No.3 are at liberty to take possession of the suit land and realization of the compensation money by process of court. them are directed Pleader’s fee as per contested scale.” 5. Mr. Mishra, learned counsel for the Petitioners in both the CMPs submits that since the proceeding under Order IX Rule 13 C.P.C. is pending for consideration, learned Executing Court should not proceed with execution case in view of the decision in the case of Dhoba Moharana –v- Smt. Lili Moharana and others, reported in 2019 (II) ILR-CUT-763. If the execution case proceeds, then the petition filed under Order IX Rule 13 C.P.C. will be infructuous. He, however, submits that since the Petitioners in both the CMPs are directed to pay compensation of Rs.20,000/- along with interest @ 6% per Page 2 of 5 // 3 // annum from the date of filing of the suit till realization, they are ready and willing to deposit 50% of the same to secure the decree. Hence, the impugned orders are not sustainable and are liable to be set aside. 6. Mr. Bhuyan, learned counsel for Opposite Parties in both the CMPs submits that the Petitioner in CMP No. 1265 of 2022 was not set ex parte. Hence, the petition under Order IX Rule 13 C.P.C. at her instance is not maintainable. Further, the Plaintiff-Opposite Party No. 1 is litigating with the present Petitioners along with others for recovery of possession and for adequate compensation since 2013. Although the decree has been passed since 2017, the Plaintiff-Opposite Party No.1 is yet to enjoy the fruit of the decree. He further submits that the Petitioners in both the CMPs were well aware of the proceedings in Execution Case No.66 of 2017 and if they allowed, it to reach the stage of delivery possession and at that stage only, the petition under Order IX Rule 13 C.P.C. has been filed in which the delay in filing the petition has not yet been condoned. He also submits that learned trial Court relying upon the decision in the case of Rahul S. Shah -v- Jinendra Kumar Gandhi and others, reported in (2021) 6 SCC 418 and the amendment made to CPC pursuant to the said direction, has dismissed the petition. It is mandate of law to dispose of the execution case within a period of six months. Since there is no valid reason to extend the period for disposal of the execution case, learned trial Court has committed no error in passing the impugned order. As such, the CMP being devoid of any merit is liable to be dismissed. Page 3 of 5 // 4 // 7. Considering the rival contentions of the parties and on perusal of the record, it appears that the Petitioners in both the CMPs have filed CMA No.49 of 2018 under Order IX Rule 13 C.P.C. for setting aside the ex parte decree passed against them. Of course, the Petitioner in CMP No. 1265 of 2022, namely, Sarit Das, who was Defendant No.1 (Una), appears to have contested the suit. Mr. Mishra, learned counsel for the Petitioner in CMP No. 1265 of 2022 submits that although initially he contested the suit, but subsequently did not contest the same for which the Court should have followed the procedure under Order 17 Rules 2 and 3 C.P.C. As such, he is deemed to have been set ex parte. This Court does not express any opinion on the same as the petition under Order IX Rule 13 C.P.C. is sub- judice. However, since the Petitioners have already filed a petition under Order IX Rule 13 C.P.C., which is pending for adjudication, this Court feels that a breathing time should be given to them to get an order from the Court in which the petition under Order IX Rule 13 C.P.C. is pending. 8. Keeping in mind the direction of learned trial Court to pay compensation, as aforesaid, this Court feels that the Petitioners in order to secure the decree should deposit the entire compensation amount along with interest @ 6% per annum till date before learned Executing Court without prejudice to their case. 9. Accordingly, it is directed that on deposit of Rs.10,00,000/- (Rupees ten lakh only) in Execution Case No. 66 of 2017 pending before learned 1st Additional Senior Civil Judge, Balasore within a period of three weeks hence, i.e. 21 Page 4 of 5 // 5 // days hence, further proceedings in Execution Case No. 66 of 2017 shall remain stayed for a period of six months from today. It is made clear that if the Petitioners in both the CMPs fail to deposit the aforesaid amount within the time stipulated, as directed above, learned Executing Court is at liberty to proceed with the execution case in accordance with law. 10. It is further made clear that this order of stay of the execution proceeding shall remain effective till the period of completion of six months from today and not beyond that. 11. With the aforesaid observation and direction, both the CMPs are disposed of. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Page 5 of 5