Pramila Sahoo vs Kandarpa Behera And Another
2021 Latest Caselaw 8924 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    C.M.P. No.1362 OF 2019
                   Pramila Sahoo                         ....       Petitioner
                                              Mr. Sidharth Mishra, Advocate
                                          -versus-
                   Kandarpa Behera and another           .... Opp. Parties

                         CORAM:
                         JUSTICE K.R. MOHAPATRA
                                          ORDER

Order No.                                26.08.2021
 05.        1.         This matter is taken up through hybrid mode.

2. None appears for the Opposite Party Nos.1 and 2 although they are represented through Shri Kalpataru Mishra, learned Advocate and his associates.

3. Earlier the matter was listed on 10th August, 2021, but none had appeared on behalf of Opposite Party Nos.1 and 2 when the matter was called. As such, in order to provide another opportunity to learned counsel for Opposite Party Nos.1 and 2, the matter stood adjourned to be listed today.

4. The Petitioner in this CMP seeks to assail the order dated 5th November, 2019 (Annexure-4) passed by learned Civil Judge (Senior Division), Talcher in Execution Case No.5 of 2014, whereby learned Civil Judge directed the Tahasildar, Kaniha to produce the correct map of Suit Plot No.431/881 in Khata No.86/59 of Mouza-Ambapal in the district of Angul as well as the record of Lease Case No.121 of 2005.

5. Mr. Mishra, learned counsel for the Petitioner submits that the Petitioner as Plaintiff had filed C.S.No.26 of 2008. The suit was decreed by learned Civil Judge vide judgment and

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decree dated 6th May, 2011 and 18th May, 2011 respectively. The said judgment and decree was not challenged. Subsequently, the Petitioner being the Decree Holder (DHr.) filed Execution Case No.5 of 2014. The Executing Court proceeded with the matter by appointing Commissioner to measure the land and to demolish the structure raised by the Judgment Debtors (JDrs.) over the suit land. The said order was challenged by the JDrs. in CMP No.38 of 2018 on the allegation that learned Executing Court while appointing the Commissioner for measurement of the suit land, simultaneously passed the order to demolish the structure standing over the suit land. It was contended by the JDrs. therein that direction may be issued to the Executing Court to measure the suit land first and thereafter proceed with the execution case. The said CMP was disposed of vide order 4th August, 2019 directing the Executing Court to depute an Amin for measurement of the land in presence of the counsel for both the parties and thereafter proceed with the execution case. It was further directed that entire exercise should be completed within a period of three months from the date of production of certified copy of the order. When the matter stood thus, the JDrs. filed an application under Order VII Rule 3 C.P.C. praying for a direction to the Tahasildar, Kaniha to produce the corrected map of Suit Plot No.431/881 in Khata No.86/59 of Mouza- Ambapal in the district of Angul as well as the record of Lease Case No.121 of 2005. Although the Petitioner (DHr.) filed objection to the same challenging the maintainability of such petition, learned Civil Judge (Senior Division), Talcher without

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considering the same from its proper perspective passed the impugned order. Hence, this CMP has been filed.

6. It is contended by Mr. Mishra, learned counsel for the Petitioner that neither during pendency of the suit nor at any stage during continuance of the execution proceeding, the JDrs. have raised an objection with regard to identity of the suit land. Further, in CMP No.38 of 2018, the JDrs. had not taken such a stand. When the identity of the suit land is not in dispute, production of any corrected map or lease case record is irrelevant for the purpose of proceeding with the execution case. Hence, he prays for setting aside the impugned order under Annexure-4 and issue direction to learned Civil Judge (Senior Division),Talcher to proceed with the matter forthwith by deputing the Civil Court Commissioner forthwith.

7. Since none appears on behalf of Opposite Party Nos.1 and 2, this Court proceeds with the matter for disposal taking into consideration the submission of learned counsel for the Petitioner and materials available on record.

8. It appears from the case record that at no stage of the suit or execution proceeding, the JDrs. have raised any objection with regard to identity of the suit land. During pendency of CMP No.38 of 2018, also such an objection was not raised. As such, the prayer made by the Petitioner for calling for the corrected map as well as lease case records from the Tahasildar, Kaniha for identification of the suit property is unwarranted. It further appears that the provision under Order VII Rule 3 C.P.C. is not applicable to the case at hand.

9. In that view of the matter, this Court is of the considered opinion that the executing court without wasting time for

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calling for corrected map as well as lease case records, which are not relevant for the purpose of the execution of the decree, should proceed with the matter forthwith. Accordingly, the impugned order dated 5th November, 2019 (Annexure-4) is set aside and learned Civil Judge (Senior Division), Talcher is directed to depute a Civil Court Commissioner forthwith for measurement of the land in accordance with the direction made in CMP No.38 of 2018 and make an endeavour to dispose of the eviction proceeding preferably by the end of December, 2021.

10. The CMP is accordingly disposed of.

Urgent certified copy of this order be granted on proper application.

(K.R.Mohapatra) Judge jm