RSA/283/2019
2021 Latest Caselaw 102 Ori

                              RSA NO. 283 OF 2019




                          RSA NO. 283 OF 2019
                          & I.A. No. 55 of 2020

07.   05.01.2021          Due to outbreak of COVID-19, this matter is
                   taken up through Video Conferencing.
                          Heard Mr. Bhuyan, learned counsel for the
                   appellant at length on the question of admission of the
                   second appeal.
                          It is the specific contention of Mr. Bhuyan,
                   learned counsel for the appellant that in absence of
                   pleadings as well as framing of issue to that effect, the
                   issue of res judicata could not have been decided by
                   both the courts below.        In support of his case, he
                   referred to the relevant portion of the judgments of the
                   trial court as well as the appellate court. But it reveals
                   that none of the courts below has dealt with the plea of
                   the appellant with regard to admissibility of the
                   documents, i.e. Exts. 8, 9 and 10, in absence of any
                   pleadings to that effect.     In order to ascertain as to
                   whether such a plea was taken by the appellant either
                   before the trial court or before the appellate court, this
                   Court feels it appropriate to refer to the appeal memo
                   filed in RFA No. 19 of 2014.         Hence, Mr. Bhuyan,
                   learned counsel for the appellant is required to file the
                   copy of the appeal memo in RFA No. 19 of 2014.
                           At this stage, Mr. Bhuyan, learned counsel for
                   the appellant submits that in absence of any decree for
                   recovery   of   possession,    the   executing   court   is
                                       2

      proceeding ahead with the delivery of possession of the
      suit land to the plaintiff-respondent no.1 in Execution
      Case No. 8 of 2015 pending in the court of learned
      Civil Judge (Junior Division), Khurda. Hence, he prays
      for stay of further proceedings in the Execution Case
      to keep the lis alive.
             Ordinarily, the petition for interim order should
      not have been entertained before the appeal is
      admitted.    But, taking into consideration that the
      Court is in the midst of hearing of the matter on the
      question of admission, it will be appropriate to stay
      further proceeding in Execution Case No. 8 of 2015 for
      the time being.     Accordingly, this Court directs that
      further proceeding in Execution Case No. 8 of 2015
      pending before learned Civil Judge (Junior Division),
      Khurda shall remain stayed till the next date.
             Put up this matter on 28.01.2021.
             Authenticated copy of this order downloaded from
      the website of this Court shall be treated at par with
      certified copy in the manner prescribed in this Court's
      Notice No.4587 dated 25.03.2020.


                               .................................
                                 K.R. Mohapatra, J.

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