Orissa High Court
Hari Sahoo vs Bijay Kumar Mahalik And Others on 19 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 200 OF 2020
Hari Sahoo .... Petitioner
Mr. Yeeshan Mohanty, Senior Advocate
being assisted by Mr. P.C. Biswal, Advocate
-versus-
Bijay Kumar Mahalik and others .... Opp. Parties
Mr. Bhabani Samal, Advocate
(For Opp. Party No.1)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 19.09.2022
3. 1. This matter is taken up through hybrid mode.
2. The Petitioner in this CMP seeks to assail the order dated
26th October, 2019 (Annexure-4) passed by learned District
Judge, Kendrapara in R.F.A. No.28 of 2019, whereby an
application for leave to file appeal has been rejected.
3. Mr. Mohanty, learned Senior Advocate appearing for the
Petitioner submits that C.S. No.713 of 2015 was filed by the
Opposite Party No.1 against Opposite Party Nos.2 to 4 for
recovery of possession. The Petitioner was not a party to the said
suit. The suit was decreed vide judgment and decree dated 18th
May, 2018 and 21st June, 2018 respectively. Pursuant to the
judgment and decree passed in civil suit, Execution Case No.14
of 2018 has been initiated by the Opposite Party No.1 against the
Opposite Party Nos.2 to 4, which is pending in the Court of
learned Senior Civil Judge, Kendrapara. When writ of delivery
of possession was issued, the Petitioner, who is in possession of
three kadi out of the suit land, came to know about the decree
passed in the suit and filed R.F.A No.28 of 2019 along with an
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application to grant leave to pursue the appeal. Said application
was rejected vide order dated 26th October, 2019. Hence, the
CMP has been filed.
4. Mr. Samal, learned counsel for the Opposite Party No.1
submits that Opposite Party No.1 does not claim any relief
against the Petitioner. He further submits that the Petitioner had
filed an application under Order 1 Rule 10 C.P.C. in the
execution proceeding, which has been rejected. Thus, a petition
for leave to prefer appeal is not maintainable.
5. Mr. Mohanty, learned Senior Advocate appearing for the
Petitioner submits that since an execution case is pending in
respect of the suit property, proper procedure for the Petitioner
will be to file an application under Order XXI Rule 97 C.P.C. to
protect his possession and pursue his remedy.
6. In view of the submissions made by learned counsel for
the parties, this Court without expressing any opinion on the
merits of the case, disposes of the CMP with an observation that
the Petitioner, if so advised, may file an application under Order
XXI Rule 97 C.P.C. in Execution Case No.14 of 2018 pending
before learned Senior Civil Judge, Kendrapara within two weeks
hence along with certified copy of this order. If such an
application is filed within the time stipulated, learned executing
Court shall do well to proceed with the same in accordance with
law giving opportunity of hearing to the parties concerned.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
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