State Of Odisha And Others vs Santosh Patra
2023 Latest Caselaw 4560 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  CMP No.238 of 2023
                 State of Odisha and others                ....      Petitioners
                                                     Mr. Swayambhu Mishra,
                                                  Additional Standing Counsel
                                            -versus-
                 Santosh Patra                             ....     Opp. Party
                                                  Mr. Budhiram Das, Advocate
                            CORAM:
                           JUSTICE K.R. MOHAPATRA
                                        ORDER

Order No.                              27.04.2023
 2.         1.       This matter is taken up through Hybrid mode.

2. Order dated 30th January, 2023 (Annexure-4) passed by learned Senior Civil Judge, Sonepur in Execution Case No.4 of 1991 is under challenge in this CMP, whereby applying the ratio in Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation, reported in (2018) 16 SCC 299 learned executing Court vacated the conditional order of stay granted by this Court in CMP No.1124 of 2016 disposed of on 30th August, 2017.

3. Mr. Mishra, learned ASC submits that the vehicle bearing registration No.ORS-6623 (Tractor) was seized from the DHr./Opposite Party and kept in the zima of one Chandal Seth. Subsequently, Money Suit No.76 of 1987 was initiated and learned Sub-ordinate Judge, Sonepur directed to pay damages of Rs.10,000/- and Rs.300/- per day as compensation from the date of seizure of the tractor, i.e., 9th March, 1987 till it is paid. The said decree was unsuccessfully challenged by the State of Odisha- Petitioners in Money Appeal No.4/2 of 1988-89 before

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learned District Court. In Second Appeal No.216 of 1991 before this Court filed against the judgment and decree in the Money Appeal was also dismissed on 8th January, 2014. Due to non- payment of the decreetal amount, the DHr./Opposite Party initiated Execution Case No.4 of 1991 before the learned Civil Judge (Senior Division), Sonepur for its realization, i.e., Rs.25,19,735.45. During pendency of the Execution Proceeding, the State of Odisha filed CS No.28 of 2015 to set aside the judgment and decree passed in CS no.76 of 1987 on the ground that the decree put to execution was obtained by practicing fraud on the Court. Thereafter, an application under Order XXI Rule 29 CPC was filed to stay further proceeding of the Execution Case till disposal of CS No.28 of 2015. The said application was rejected. State of Odisha filed CMP No.1124 of 2016 before this Court assailing the order of rejection of application under Order XXI Rule 29 CPC. This Court, vide order dated 30th August, 2017, discussing the scope of provision under Order XXI Rule 29 CPC disposed of the CMP with the following direction :-

"In view of the same, ends of justice would be better served if further proceeding of the suit is stayed subject to depositing an amount of Rs.10,00,000/- in the executing court within a period of three months from today. Ordered accordingly. Failure of depositing of aforesaid amount within a period of three months, the learned executing court shall execute the decree forthwith. It is made clear that this Court will not entertain any application for extension of time. After the amount is deposited, the same shall be released to the DHr. on proper identification subject to the D.Hr. furnishing an indemnity bond.

The petition is disposed of."

Pursuant to the order passed by this Court, a sum of Rs.10.00 lakh was deposited and the same has already been received by

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the DHr./Opposite Party. Subsequently, applying the guidelines of Asian Resurfacing (supra), learned executing Court vacated the order of stay vide order dated 30th January, 2023. Hence, this CMP has been filed.

3.1 Mr. Mishra, learned ASC relied upon the case of Shaukat Hussain alias Ali Akram and others Vs. Smt. Bhuneshwari Devi (dead) by LRs and others, reported in (1972) 2 SCC 731, wherein at para-6, it is held as under:-

6. .........And then we have rule 29 which deals with a different situation. The rule is as follows :

" Where a suit is pending in any court against the holder of a decree of such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."

It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the, instance of the judgment-debtor against the decree-holder. That is a condition under which the court in which the suit is pending may stay the execution before it. If that was the only condition, Mr. Chagla would be right in his contention, because admittedly there was a proceeding in execution by the decree-holder against the judgment-debtor in the court of Munsif 1st Gaya and there was also a suit at the instance of the judgment-debtor against the decree holder in that court. But there is a snag in that rule. It is not enough that there is a suit pending by the judgment-debtor, it is further necessary that the suit must be against the holder of a decree of such court. The words "such court" are important. "Such court" means in the context of that rule the court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that court. That appears to be the plain meaning of the rule.

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He, therefore submits that the Petitioners-State of Odisha fulfill the requirement of Rule 29 of Order XXI CPC. He also relied upon subsequent order passed by Hon'ble Supreme Court in Asian Resurfacing of Road Agency Private Limited (supra) clarifying the ratio rendered earlier in Asian Resurfacing of Road Agency Private Limited (supra), which is as under:-

"We are afraid that the attempt of the applicant to draw inspiration from the above directions as referred to above cannot succeed in view that this Court cannot be understood as having intended to apply the principle to the fact situation which is presented in this case. Accordingly, the miscellaneous application for clarification is disposed of by clarifying that the order of stay granted by the Division Bench in the High Court cannot be treated as having no force. However, we leave it open to the applicant to seek early disposal of the case."

He thus submitted that the direction of this Court in CMP No.1124 of 2016 cannot be said to have lost its force after six month. He, therefore, submits that the order dated 30th January, 2023 (Annexure-4) passed in CMP No.1124 of 2016 should continue till disposal of CS No.28 of 2015.

4. Mr. Das, learned counsel for the Opposite Party/DHr. submits that in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi and others, reported in (2021) 6 SCC 418, Hon'ble Supreme Court has held that the Execution Case should be disposed of within a period of six months from the date of filing. Since the procedure of trial of the suit is equally applicable to the proceedings under Order XXI CPC, the guidelines/ratio in Asian Resurfacing of Road Agency Private Limited (supra), is squarely applicable to the execution proceedings. As such, learned executing Court has committed no error in vacating the order of stay granted by this Court in

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CMP No.1124 of 2016 holding it to have lost its force after lapse of six months.

5. Considering the rival contentions of the parties, this Court finds that Order XXI Rule 29 CPC makes it clear that the Petitioner-J.Dr. when applies for stay of execution proceeding must furnish adequate security to get an order in its favour. The execution proceeding has been filed in 1991 for realization of Rs.25,19,735.45. In the meantime, more than thirty two years have already elapsed. Thus, in order to secure the decree, the Petitioners-State of Odisha should deposit a further sum. It is submitted by Mr. Mishra, learned ASC that the Petitioners/JDrs. being the State of Odisha no further security should be directed to be deposited for continuance of the order of stay. However, Mr. Das, learned counsel for the DHr./Opposite Party vehemently objected to the same submitting that decreetal amount is increasing every day.

6. Taking into consideration the submissions of learned counsel for the parties, it is directed that further proceeding in Execution Case No.4 of 1991 pending in the Court of learned Senior Civil Judge, Sonepur shall remain stayed subject to deposit of further sum of Rs.7,50,000/- (rupees Seven lakh fifty thousand only) by the JDrs./Petitioners before the executing Court within a period of four weeks hence.

6.1 Since the CS No.28 of 2015 is still pending and it is submitted by Mr. Mishra, learned ASC that the issues have already been framed in the suit, learned trial Court should make all endeavour to see that the suit is disposed of at an early date in accordance with law to avoid further complicacies.

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7. The impugned order is set aside and the CMP is disposed of.

8. As requested by Mr. Mishra, learned ASC, a copy of this order may be made over to him for communication and compliance.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge

s.s.satapathy