Balabhadra Mahato And Another vs Basudev Mahato And Others
2023 Latest Caselaw 10245 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 29-Aug-2023 19:51:15


                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                                 CMP No. 624 OF 2023
                                               Balabhadra Mahato and another       ....      Petitioners
                                                                    Mr. Rabi Narayan Behera, Advocate
                                                                      -versus-
                                               Basudev Mahato and others           .... Opp. Parties

                                                    CORAM:
                                                    JUSTICE K.R. MOHAPATRA
                                                                       ORDER

                        Order No.                                     28.08.2023
                              4.          1.      This matter is taken up through hybrid mode.

2. The Petitioner in this CMP seeks to assail the order dated 17th May, 2023 (Annexure-6) passed by learned 1st Additional Sessions Judge, Rourkela in F.A.O. No.30 of 2021, whereby dismissing the appeal, learned appellate Court confirmed the order dated 22nd September, 2021 (Annexure-5) passed by learned Senior Civil Judge, Rourkela in I.A. No.9 of 2021 (arising out of C.S. No.12 of 2021) dismissing an application under Order XXXIX Rules 1 and 2 CPC.

3. Mr. Behera, learned counsel for the Petitioner drew attention of this Court to the impugned order under Annexure-6 passed by learned 1st Additional Sessions Judge, Rourkela, which is as under:

"Ld. counsel for both the parties are present. Judgment is ready and pronounced in the open Court. In the judgment, "The appeal being devoid of any merit stands dismissed on contest against the respondent no.1, 2, 3, 4 & 8 and ex parte against respondent No.1,2,3,4,8,9 & 10 and exparte against respondent No.5,6 & 7. But in the circumstance of the case, no cost is imposed. However, the parties are to bear their own costs."

Signature Not Verified Digitally Signed // 2 // Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Aug-2023 19:51:15

He further submits that no detailed order has been passed by learned appellate Court. As such, the impugned order being cryptic and non-speaking, is liable to be set aside.

4. On perusal of the impugned order under Annexure-6, it appears that learned appellate Court has only recorded its final conclusion in the appeal and has not discussed the case of either of the parties. Mr. Behera, learned counsel for the Petitioners submits that no separate detailed order has been passed. He had applied for the certified copy of the judgment and the aforesaid order was supplied.

5. In view of the above, this Court has no hesitation to set aside the order dated 17th May, 2023 under Annexure-6 passed by learned 1st Additional Sessions Judge, Rourkela in F.A.O. No.30 of 2021 and remit the matter to learned appellate Court for fresh adjudication of the appeal.

6. The CMP is accordingly allowed to the aforesaid extent.

7. Since the CMP is disposed of without issuing notice to the Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved.

Urgent certified copy of this order be granted on proper application.

                                                                                (K.R. Mohapatra)
                ms                                                                    Judge