Orissa High Court
Geetanjali Pani vs Pratap Chandra Swain on 19 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 572 of 2018
Geetanjali Pani ..... Petitioner
Mr. Bibekananda Bhuyan, Advocate
-versus-
Pratap Chandra Swain .... Opp. Party
Mr. Khetra Mohan Dhal, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 19.09.2022
7. 1. This matter is taken up through Hybrid mode.
2. Though this matter is listed for orders today, on the
consent of learned counsel for the parties, the same is taken up
for hearing and final disposal.
3. Petitioner in this CMP seeks to assail order dated 24th
March, 2018 (Annexure-2) passed in IA No.1 of 2017 (Arising
out of RFA No.60 of 2017), whereby learned District Judge,
Cuttack dismissed an application under Order XXXIX Rules 1
and 2 CPC filed by the Petitioner (Appellant therein).
4. Mr. Bhuyan, learned counsel for the Petitioner submits
that the suit was filed by the Plaintiff/Petitioner for specific
performance of contract. The suit was decreed in part directing
the Defendant/Respondent to pay consideration amount.
Assailing the same the Petitioner preferred the aforesaid appeal.
During pendency of the appeal, Respondent/Opposite Party
contemplated to alienate the suit land for which the Petitioner
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filed IA No.1 of 2017 under Order XXXIX Rules 1 and 2 CPC.
The said application was rejected by the impugned order. Hence,
this CMP has been filed.
5. At the outset, Mr. Bhuyan, learned counsel for the
Petitioner submits that the Petitioner ought to have filed an
appeal under Order XLIII Rule 1(r) CPC assailing the order
impugned herein. However, the CMP has been filed and while
issuing notice on the question of admission this Court, vide order
dated 18th April, 2018, as an interim measure directed both
parties to maintain status quo over the suit /disputed property as
on that date. It is submitted by learned counsel for the Petitioner
that the said order is continuing till date. He therefore, prays that
without delving into merit of the matter, interest of justice will
be best served, if a direction is made to dispose of the appeal
within a stipulated period maintaining the interim order passed
by this Court.
6. Mr. Dhal, learned counsel for the Opposite Party
vehemently opposed the above submission. It is his contention
that since the CMP is not maintainable, interim order therein
should be vacated immediately. He further relied upon a decision
in the case of M/s East End Infotech Pvt. Ltd and others Vs.
M/s Esskay Machinery Pvt. Ltd. and others, reported in 2007
(I) CLR 10, wherein this Court relying upon the parent decision
under Order XXXIX Rules 1 and 2 CPC of the Hon'ble Supreme
Court in the case of Dalpat Kumar and another Vs. Prahallad
Singh and others, reported in AIR 1993 SC 226, came to hold
that since the alienation, if any, will be governed under Section
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52 of the Transfer of Property Act, application under Order
XXXIX Rules 1 and 2 CPC should not be granted. It is his
contention that pursuant to the decree, the Respondent / Opposite
Party has already deposited the consideration amount before
learned trial Court. He further submits that in a suit for specific
performance the Plaintiffs have no absolute right to get the
contract executed through Court. The Court has discretion to
pass a decree to refund the consideration money which has been
done in this case and the Respondent/ Opposite Party has
complied with the said direction. Hence, the CMP merits no
consideration and is liable to be dismissed. Consequentially,
interim order granted is also liable to be vacated forthwith.
7. Taking into consideration the submissions made by
learned counsel for the parties, this Court finds that assailing the
judgment and decree passed in CS No.7060 of 2014 (I), the
Petitioner has filed RFA No.60 of 2017, which is pending in the
Court of learned District Judge, Cuttack. The Petitioner, who is
Appellant before learned District Judge has filed this CMP
assailing the order rejecting an application under Order XXXIX
Rules 1 and 2 CPC. The statutory remedy is available to the
Petitioner to assail the order impugned herein by filing an appeal
under Order XLIII Rule 1(r) CPC. However, this Court taking
cognizance of the matter, vide order dated 18th April, 2018 has
directed the parties to maintain status quo over the suit property
till the next date. Mr. Dhal, learned counsel for Respondent
/Opposite Party, in course of hearing, submitted that the
Respondent/Opposite Party has no intention to alienate the
property in recent future.
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8. In view of the facts and circumstances stated above, this
Court is of the considered opinion that interest of justice will be
best served if the appeal is disposed of on its own merit at an
early date.
9. Accordingly, this Court, without delving into the issue of
maintainability of CMP, disposes of the same with a direction to
learned District Judge, Cuttack to dispose of the appeal, i.e.,
RFA No.60 of 2017 as expeditiously as possible, preferably by
end of March, 2023 on its own merit giving opportunity of
hearing to the parties concerned. Since the interim order was
passed on 18th April, 2018 and is continuing as on date it is
directed that parties shall maintain status quo over the suit
property till disposal of the appeal.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
