Orissa High Court
Learned Counsel For The vs Unknown on 1 March, 2021
C.M.P. No.36 of 2021
04. 01.03.2021 Heard leaned counsel for the parties.
This CMP has been filed assailing the order dated
06.01.2021 (Annexure-4) passed by learned Civil Judge
(Senior Division), Bhubaneswar in C.M.A. No.122 of 2020
(arising out of C.S. No.703 of 2018), whereby he rejected
an application for stay of further proceedings in Execution
Case No.29 of 2020 till disposal of the petition under Order
IX Rule 13 C.P.C. (C.M.A. No.122 of 2020).
Learned counsel for the petitioner submits that the
petitioner is the JDr. in Execution Case No.29 of 2020
arising out of C.S. No.703 of 2018, which has been decreed
ex-parte by learned Civil Judge (Senior Division),
Bhubaneswar vide judgment dated 17.12.2019. When the
petitioner-JDr. came to know about the ex-parte decree, he
filed C.M.A. No.122 of 2020 along with a petition under
Section 5 of the Limitation Act. Learned Civil Judge finding
a prima facie case although admitted the CMA but rejected
the prayer for stay of further proceeding in Execution Case
No.29 of 2020 for which this CMP has been filed. In
support of his submission, he relied upon the decision of
this Court in the case of Dhoba Moharana -v- Smt. Lili
Moharana and otehrs; reported in 2019 (II) ILR-CUT-763
and therefore, submits that the impugned order may be set
aside and further proceedings in Execution Case No.29 of
2020 may be stayed till disposal of C.M.A. 122 of 2020.
Mr. Alam, learned counsel for the opposite
party(decree holder) vehemently objected to the same and
contended that before condoning the delay, C.M.A. No.122
of 2020 filed by the petitioner cannot be taken into
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consideration. As such, the order of learned Civil Judge
admitting the C.M.A. is not sustainable in law. He further
submits that the petitioner has a remedy before the
executing court to make a prayer for stay of execution
proceeding. Hence, the impugned order needs no
interference.
Taking into consideration the submissions made by
learned counsel for the parties and on perusal of the
record, it appears that the petition under Section 5 of the
Limitation Act filed in C.M.A. No.122 of 2020 has not yet
been considered by learned Civil Judge (Senior Division),
Bhubaneswar. Thus, he could not have entertained an
application for stay of further proceeding in Execution
Case No.29 of 2020. It can only be considered after
consideration of delay, if any, in filing the CMA. Thus, the
impugned order under Annexure-4, being not sustainable,
is set aside.
Be that as it may, since the parties to the execution
proceeding have appeared before this Court, interest of
justice will be best served if the parties are directed to
appear before learned executing court on a particular date
and put-forth their case.
In that view of the matter, parties to the C.M.A. are
directed to appear before learned Civil Judge (Senior
Division), Bhubaneswar on 17.03.2021 to receive further
instruction in the matter.
On appearance of the learned counsel for the parties,
learned Civil Judge (Senior Division), Bhubaneswar shall
take into consideration the petition filed under Section 5 of
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the Limitation Act in C.M.A. No.122 of 2020 giving
opportunity of hearing to the parties concerned and
thereafter proceed with the matter in accordance with law.
In order to enable the parties to appear before
learned Civil Judge (Senior Division), Bhubaneswar and
pursue their case, interim order dated 22.01.2021 passed
in I.A. No.41 of 2021 shall remain operative till
31.03.2021.
With the aforesaid observation, this CMP is disposed
of.
Urgent certified copy of this order be granted on
proper application.
................................
jm K.R. MOHAPATRA,J.
