The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1392 OF 2022 Nibedita Das …. Petitioner Mr. Banshidhar Baug, Advocate -versus- Nilamadhab Das and others …. Opp. Parties Mr. Dwarika Prasad Mohanty, Advocate (For Opposite Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 05.05.2023 5. 1. This matter is taken up through hybrid mode. 2. Order dated 1st December, 2022 (Annexure-4) passed by learned Senior Civil Judge, Balasore in Execution Case No.9/22 of 2021 is under challenge in this CMP, whereby an application filed by the Petitioner/JDr. for stay of the execution proceeding till disposal of Probate Case No. 60 of 2015 pending before learned District Judge, Balasore, has been rejected. 3. Mr. Baug, learned counsel for the Petitioner submits that OS No. 245 of 1990-I was filed for partition of the suit property of common ancestor, namely, late Basant Kumar Das. The suit was decreed preliminarily on 16th May, 1992 allotting 1/7th share in favour of the each of the legal heirs of said Basanta Kumar Das. Being aggrieved, the Defendant No.5, namely, Nilamadhab Das filed FA No.115 of 1992 before this Court. In the First Appeal, the preliminary decree was modified allotting 1/9th share SASANKA SEKHAR SATAPATHY Digitally signed by SASANKA SEKHAR SATAPATHY Date: 2023.05.08 13:42:16 +05'30' in favour of each of the co sharers of late Basanta Kumar Das. Although AHO No.50 of 1994 was filed by said Nilamadhab Page 1 of 4 // 2 // Das, but the same was allowed to be withdrawn vide order dated 19th November, 2014. Subsequently, the Final Decree was sealed and signed on 9th April, 2021. It is his submission that widow of late Basant Kumar Das, namely, Manamohini, the mother of the Petitioner had executed a Will on 12th March, 2014 in favour of the present Petitioner. During pendency of the Final Decree proceeding, said Manamohini died. Thus, after death of the said Manamohini, the Petitioner filed Probate Case No. 60 of 2015, which is sub judice before learned District Judge, Balasore. The Petitioner was not aware of the preliminary decree or the Final Decree passed in the aforesaid partition suit. Hence, she filed RFA No.24 of 2021 under Section 97 CPC and RFA No.27 of 2021 under Section 96 of CPC. As the appeals were filed beyond the statutory period, applications for condonation of delay in the respective appeals have also been filed which are yet to be considered. At this juncture, the Defendant No.5/Opposite Party No. 1 (Nilamadhaba Das) filed Execution Case No. 9/22 of 2021 of 2021 for execution of the Final Decree passed. The Petitioner on her appearance filed an application for stay of execution proceeding till disposal of the Probate Case No. 60 of 2015. The said application was rejected on the ground that the original suit was filed in the year 1990 and in the meantime thirty years have already been passed. It is submitted by Mr. Baug, learned counsel for the Petitioner that learned executing Court did not make at all any endeavour to consider the application for stay in terms of Order XXI Rule 26 CPC. Only because the Suit presented in the year 1999, that cannot be a ground to refuse the prayer for stay of Page 2 of 4 // 3 // the execution case. The Court should have considered the petition strictly terms of Order XXI Rule 26 CPC, which has been given a go bye in this case. Accordingly, he prayed for setting aside the impugned order and to stay further proceeding of the Execution Case till disposal of Probate Case No.60 of 2015. 4. Mr. Mohanty, Learned Counsel for contesting Opposite Party No.1 submits that the Petitioner was all throughout aware of the preliminary decree and the Final Decree passed in the suit. Thus, learned executing Court taking note of the same and observing that more than thirty years have already elapsed in the meantime, refused to entertain such application. The Probate proceeding will take a considerable time for its disposal. Thus, the Petitioner/DHr. should not be deprived of the fruit of the decree during pendency of the Probate proceeding. He, therefore, submits that learned trial Court has committed no error in dismissing the petition for stay. 5. Considering the rival contentions for the parties, this Court is of the opinion that if an application for stay of the execution proceeding is filed taking a plea that a suit in respect of the self-same property is pending, learned executing Court should consider the petition in terms of Order XXI Rule 26 CPC. In course of hearing, Mr. Baug, learned counsel for the Petitioner placed reliance on a decision of this Court in the case of Dinesh Kumar Pathak and another Vs. Smt. Sashi Sharma and others, reported in 2017 (I) CLR 733, wherein this Court has stayed the further proceeding of the partition suit till disposal of the Probate Page 3 of 4 // 4 // proceeding therein. In the case of Ashok Kumar Ray Vs. Rewa Biswas, reported in AIR 2017 Ori 48, this Court has also stayed the proceeding in the suit till disposal of the Probate Case therein. Further, this Court while disposing of the said CMP, directed for early disposal of the Probate proceeding. 6. Taking note of the above, this Court sets aside the order dated 1st December, 2022 (Annexure-4) passed by learned Senior Civil Judge, Balasore in Execution Case No.9/22 of 2021 and remits the matter to learned executing Court for fresh adjudication of the petition for stay of further proceeding in the Execution Case keeping in mind the observation made hereinabove. 6.1 The parties are at liberty to move the learned District Judge, Balasore for early disposal of the Probate Proceeding. It is made clear that this Court has not expressed any opinion on the merit of the case of either of the parties. 7. With the aforesaid observation and direction, the CMP is disposed of. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4