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-Mar-2024 18:51:15 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1465 OF 2023 Jyoti Shankar Mishra Sarojini Mohapatra …. Mr. Samir Kumar Mishra, Senior Advocate being assisted by Mr. J. Pradhan, Advocate Petitioner -versus- …. Opp. Party Mr. Debaraj Mohanty, Advocate (Caveator) Order No. 03. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 29.02.2024 This matter is taken up through hybrid mode. Petitioner in this CMP seeks to assail the judgment dated 12th October, 2023 (Annexure-3) passed in FAO No.23 of 2022, whereby dismissing the appeal, learned Additional District & Sessions Judge-cum-Special Judge, Vigilance, Baripada confirmed the order dated 27th June, 2022 (Annexure-2) passed by learned Senior Civil Judge, Baripada in IA No.39 of 2022 (arising out of Execution Petition No.10 of 2019), whereby an application filed under Order XXI Rule 99 CPC, was rejected. 3. It is submitted by Mr. Mishra, learned Senior Advocate appearing for the Petitioner that learned Executing Court, while adjudicating the matter, proceeded on a footing that it was a petition under Order XXI Rule 99 CPC, whereas the Petitioner had filed IA No.39 of 2022 under Order XXI Rule 97 CPC. In view of the provision under Order XXI Rule 101 CPC, the petition under Order XXI Rule 97 CPC should have been adjudicated like a suit giving opportunity of hearing to the parties to adduce evidence in support of their respective cases. But, learned Executing Court Page 1 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Mar-2024 18:51:15 // 2 // without providing such opportunity to the Petitioner proceeded with the matter like any other miscellaneous petition. The Petitioner relied upon certain documents as would be clear from the petition under Order XXI Rule 97 CPC (Annexure-1) itself. Had he been provided opportunity to adduce evidence, the decision might have been different. An order passed in an application under Order XXI Rule 97 CPC is a decree in view of the provision under Order XXI Rule 103 CPC, as the Court after adjudicating a petition under Order XXI Rule 97 CPC passes an order under Order XXI Rule 98 CPC. Thus, a Regular First Appeal under Section 96 read with Order XLI Rule 1 CPC should have been filed. But, the appeal was filed under Section 104 read with Order XLIII Rule 1 CPC. As such, the appeal under Section 104 read with Order XLIII Rule 1 CPC may not be maintainable. 4. He further submits that no ground in the appeal memo with regard to lack of opportunity to adduce evidence could be taken by the Petitioner. However, learned appellate Court, while sitting over an order passed in Order XXI Rule 98 CPC, is duty bound to see whether learned Executing Court while adjudicating the petition under Order XXI Rule 97 CPC has complied with the provision under Order XXI Rule 101 CPC or not. In view of the above, he submits that learned appellate Court, treating the appeal memo in FAO No.23 of 2022 to have been filed under Section 96 read with Order XLI Rule 1 CPC should decide the same afresh giving opportunity of hearing to the parties concerned, failing which a valuable right of the Petitioner will be taken away without providing him any opportunity of hearing. He, therefore, prays for setting aside the impugned order under Annexure-3 and to remit the Page 2 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Mar-2024 18:51:15 // 3 // matter to learned appellate Court for fresh adjudication of the appeal in terms of Section 96 read with Order XLI CPC. 5. Mr. Mohanty, learned counsel for the Opposite Party- Decree holder vehemently objects to the same. It is his submission that the Petitioner was neither a party to the suit nor a party to the execution proceeding. Thus, he should not be rewarded for default in asserting his right. Since to Petitioner has not raised any grievance with regard to non-compliance of principles of natural justice and not providing him an opportunity to adduce evidence, he should not be provided with the same. It is his submission that at no point of time, till filing of the CMP, the Petitioner has taken such a plea. Copy of the appeal memo filed by Mr. Mishra, learned Senior Advocate appearing for the Petitioner in Court today also does not disclose that any such ground was taken in the appeal memo itself. It is his submission that on the materials available on record, learned appellate Court adjudicated the matter and passed the order under Annexure-3. Although, the nomenclature of the appeal has been stated to be F.A.O., but the order passed therein should be treated as a decree. As such, a CMP under Article 227 of Constitution of India would not be maintainable and the Petitioner, if so aggrieved, may file an appeal under Section 100 CPC. He, therefore, prays for dismissal of this CMP. 6. Considering the submission made by learned counsel for the parties and on perusal of the record, it appears that none of the parties has adduced evidence during adjudication of the petition under Order XXI Rule 97 CPC. Rule 101 of Order XXI CPC clearly stipulates that all questions (including questions relating to right, title or interest over the suit property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 Page 3 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Mar-2024 18:51:15 // 4 // CPC or their representatives and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit. Thus, the provision makes it clear that all questions relating to right, title and interest in respect of subject matter of dispute, shall be adjudicated like a suit by learned Executing Court, while entertaining a petition under Order XXI Rule 97 CPC. On perusal of the order under Annexure-2 passed in IA No.39 of 2022 (arising out of Execution Petition No.10 of 2019), it appears that learned Executing Court adjudicated the petition like any other miscellaneous petition without recording receiving evidence of the parties. It is, of course, a matter of consideration as to whether a party has to seek for adducing evidence in the matter or the matter should be posted in its usual course for adducing evidence on behalf the parties. It is also not clear from the material available on record as to whether the petition under Order XXI Rule 97 CPC was ever posted for adducing evidence by framing issues in the matter. Since the order sheet of the petition in IA No.39 of 2022 and other materials are not available before this Court, I am not in a position to ascertain the same. It further appears that the appellate Court dealt with the proceeding as if it arises out of an order. 7. After adjudication of a petition under Order XXI Rule 97 CPC, the order is passed under Rule 98 CPC, which is to be treated as a decree in view of the provision under Order XXI Rule 103 CPC. Thus, learned appellate Court should have adjudicated the mater, as if it is sitting over a decree. Further, the question of adducing evidence in the petition under Order XXI Rule 97 CPC is a matter to be considered by learned appellate Court, which was apparently neither raised nor considered before learned appellate Page 4 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Mar-2024 18:51:15 // 5 // Court. Right of a party to adduce evidence in a proceeding under Order XXI Rule 97 CPC being a question of law can be raised at any stage of the proceeding including a petition under Article 227 of the Constitution. 8. The adjudication of the appeal against an order passed in Order XXI Rule 98 CPC is no doubt a decree. Thus, Mr. Mohanty, learned counsel for the Opposite Party has rightly submitted that a Second Appeal would lie against such an order/decree. In the instant case, learned trial Court proceeded with the matter, as if it is sitting over an order, not a decree. When the Court is sitting over a decree, it has wider power under Order XLI CPC, which is not available in a proceedings under Section 104 read with Order XLIII Rule 1 CPC. Moreover, no appeal is provided under Order XLIII Rule 1 CPC against an order passed under Order XXI Rule 98 CPC. 9. In view of the discussion made above, this Court feels that the matter should be examined afresh by learned appellate Court giving opportunity of hearing to the parties concerned. 10. The parties are also at liberty to raise questions of facts and law before learned appellate Court for adjudication of the appeal. In order to avoid unnecessary delay, parties are directed to appear before learned appellate Court on 2nd April, 2024 to receive further instruction in the matter. 11. The CMP is disposed of accordingly. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 5 of 5