Divisional Head vs Harihar Padhi & Another
2023 Latest Caselaw 2757 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                               RSA NO.246 OF 2016
            Divisional Head, IDCO, Balasore & ....           Appellants
            Another
                                           Mr. P.K. Mohanty, Advocate
                                        -versus-
            Harihar Padhi & Another                 ....        Respondents,
                                                   Mr.K.K. Nayak, Advocate.
                      CORAM:
                      MR. JUSTICE D.DASH
                                       ORDER

04.04.2023 Order No. I.A. NO.292 OF 2023

06. 1. This matter is taken up through hybrid arrangement (Physical/ Virtual) mode.

2. The Petitioners by filing this application has sought for a clarification as to the progress of the execution proceeding which was pending, when the Second Appeal was disposed of.

3. Learned Counsel for the Petitioners submits that the cause of action for seeking this clarification has arisen not because of any confusion arising from the order passed in the Second Appeal which is clear and unambiguous but it is because of the fact that the Executing Court having misread the said order and misconstrued the same has held the Execution Proceeding as to have become infractuous when as per the order of this Court in the Second Appeal the Execution Proceeding was to continue for realization of decreetal dues in terms of the decree passed by the First Appellate Court in which the decree passed by the Trial Court stood merged.

4. Keeping in view the submission, the record being perused; it appears that the clarification has been sought for in view of the order passed by the learned 1st Additional Senior Civil Judge,

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Balasore in the said Execution Case holding the execution case to have become infructuous.

5. The order of this Court is as under:-

"That a plain reading being given to the above, it is crystal clear that this Court having confirmed the judgment and decree passed by the First Appellate Court as regards payment of simple interest @ 6% per annum over the principal amount of Rs.3,22,811/-, the same would be standing to be release in the Execution Proceeding from the Judgment Debtor. The order passed by this Court in disposing the Second Appeal appears to have been completely misconstrued by the learned First Additional Senior Civil Judge, Balasore."

In that view of the above order passed by this Court, the Execution Proceeding could not have been held as to have become infractuous but it should have proceeded for realization of the dues as per the decree passed by the First Appellate Court in which the Trial Court's decree stood merged and that has precisely been observed by this Court. The view taken by the Executing Court is thus not in consonance with the order passed by this Court in Second Appeal.

Having said above, this Court feels it proper to observe that notwithstanding the order dated 04.03.2023 passed by the Executing Court, if the Petitioner would file a fresh Execution Case for realization of the decreetal dues in terms of the judgment and decree passed by the First Appellate Court in RFA No.156 of 2013, as has been upheld, the same would proceed for its logical conclusion in accordance with law.

6. The I.A. is accordingly disposed of.

Issue urgent certified copy as per rules.

(D. Dash), Judge.

Narayan