Orissa High Court
Mukunda Nayak vs Kuni Moharana And Others on 5 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 228 OF 2020
Mukunda Nayak .... Petitioner
Mr. Prasanta Kumar Mohanty, Advocate
-versus-
Kuni Moharana and others .... Opp. Parties
Mr. Swayambhu Mishra,
Additional Standing Counsel
(For Opposite Party Nos.4 to 9)
Mr. Himansu Sekhar Mohanty, Advocate
(For Opp. Party Nos.1 to 3)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 05.09.2022
10. 1. This matter is taken up through hybrid mode.
2. Although I.A. No. 789 of 2022 is listed for vacation of
interim order filed by the Opposite Parties, but on consent of
learned counsel for the parties, the CMP is taken up for final
disposal.
3. The Petitioner in this CMP seeks to assail the order dated
15th February, 2020 (Annexure-10) passed by learned Civil
Judge (Senior Division), Bhubaneswar in C.M.A. No.32 of 2020
(arising out of Execution Case No.35 of 2018), whereby
restoration of I.A. No.1 of 2019 filed under Order XXI Rule 97
C.P.C. by the Petitioner has been dismissed.
4. Mr. Mohanty, learned counsel for the Petitioner submits
that the Petitioner is a man of eighty-nine years old and is
suffering from several geriatric diseases. The Petitioner had
earlier filed an application under Order VI Rule 17 C.P.C. for
// 2 //
amendment of the petition under Order XXI Rule 97 C.P.C.,
which was rejected vide order dated 17th January, 2020 and
accordingly, the matter was posted to 29th January, 2020 for
adducing evidence on behalf of the Petitioner. On 29th January,
2020, although a petition for adjournment was filed, the matter
was dismissed for default as none was present at the time of call
on behalf of the Petitioner to press the petition. Accordingly, the
Petitioner filed C.M.A. No.32 of 2020 for restoration of said
petition. Although the petition for restoration was filed on 13th
February, 2020, learned Civil Judge (Senior Division),
Bhubaneswar in a hurry took up the matter on the same day, i.e.
on 13th February, 2020 and posted the matter to 14th February,
2020 for adducing evidence on behalf of the Petitioner.
However, due to the resolution passed by the Local Bar
Association, the matter was again adjourned to 15th February,
2020. On that date, the Petitioner filed an application for
adjournment. Rejecting the said application, learned executing
Court proceeded to dismissed the C.M.A.. Hence, this CMP has
been filed.
5. It is further submitted by Mr. Mohanty, learned counsel
that looking at the age of the Petitioner, learned Civil Judge
(Senior Division), Bhubaneswar should not have taken up the
matter in a hurry and should have granted a breathing time to the
Petitioner to get ready and adduce evidence in the matter.
Although an application was filed on 15th February, 2020 for
adjournment to adduce evidence, the same was not entertained.
Hence, the impugned order is not sustainable in the eyes of law.
// 3 //
For the ends of justice, the Petitioner should be given an
opportunity to press the C.M.A. No.32 of 2020 on merit.
6. Mr. Mohanty, learned counsel for the Opposite Parties-
D.Hrs. vehemently objected to the same. It is his submission
that assailing the judgment and decree passed in C.S. No.1739 of
2016 filed by the Opposite Parties-D.Hrs., the Petitioner had
filed R.F.A. No.46 of 2019 before learned District Judge,
Bhubaneswar. As no step for substitution was taken in the said
appeal, the same was abated. Hence, the present CMP is not
maintainable.
7. Mr. Mishra, learned Additional Standing Counsel for the
State Opposite Party Nos.4 to 9-J.Drs. submits that the CMP
itself is not maintainable as the order dismissing the petition
under Order XXI Rule 97 C.P.C. is appealable one. He further
submits that the Petitioner by filing the present CMP is trying to
linger the proceeding. As such, the CMP being devoid of any
merit is liable to be dismissed.
8. Taking into consideration the rival contentions of the
parties and on perusal of the record, it appears that the Petitioner
is thoroughly negligent in pursuing his application under Order
XXI Rule 97 C.P.C. in I.A. No.1 of 2019, which was dismissed
for default. It appears that the Petitioner was given opportunity
to adduce evidence in the matter. Instead of adducing evidence,
the Petitioner prayed for adjournment. It is trite law that the
Court should make an endeavour to dispose of execution
proceeding expeditiously. Although the petition under Order
XXI Rule 97 C.P.C. (I.A. No.1 of 2019) was filed on 30th
// 4 //
October, 2019, the Petitioner failed to adduce evidence in
support of his case and on 29th January, 2020, when the matter
was posted for adducing evidence on behalf of the Petitioner, a
time petition was filed for adjournment of hearing. But, neither
anyone pressed the said application nor appeared at the time of
call. As such, learned executing Court had no other option than
to dismiss I.A. No.1 of 2019 for default. Subsequently, an
application for restoration of I.A. No.1 of 2019 was filed.
Although the matter was posted to 15th February, 2020 for
adducing evidence on behalf of the Petitioner, but he failed to do
so. As usual, he filed an application for adjournment. The plea
that the Court proceeded with the matter in a hurry is not
sustainable, as the Court should proceed with the execution
proceeding expeditiously. The Court cannot proceed at the
dictate of a party. It appears from the order sheet that the
Petitioner was given opportunity to adduce evidence on his
behalf vide order dated 15th February, 2020. Thus, the Petitioner
cannot take exception to the day to day proceeding of the matter
by learned executing Court.
9. In that view of the matter, I find no infirmity in the
impugned order under Annexure-7.
10. Accordingly, the CMP being devoid of any merit stands
dismissed.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
ms
