Zada Bibi And Others vs Sk. Manwar And Others .... Opp. Parties
2023 Latest Caselaw 15655 Ori

Citation : 2023 Latest Caselaw 15655 Ori
Judgement Date : 6 December, 2023

Orissa High Court

Zada Bibi And Others vs Sk. Manwar And Others .... Opp. Parties on 6 December, 2023

Author: K.R. Mohapatra

Bench: K.R. Mohapatra

Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Dec-2023 10:44:04




                                     IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                      CMP NO.1041 OF 2023
                                     Zada Bibi and others               ....                Petitioners
                                                                     Mr. Bibekananda Bhuyan, Advocate
                                                                 -versus-
                                     Sk. Manwar and others                       ....      Opp. Parties


                                                CORAM:
                                                JUSTICE K.R. MOHAPATRA
                                                        ORDER

              Order No.                                06.12.2023

                01.             1.        This matter is taken up through hybrid mode.

2. Petitioners in this CMP seek to assail the order dated 20th July, 2023 (Annedxure-3) passed by learned District Judge, Jagatsinghpur in RFA No.27 of 2023, whereby an application filed under Section 151 CPC to stay operation of the judgment passed in CS No.66 of 2002, has been rejected.

3. Mr. Bhuyan, learned counsel for the Petitioners submits that CS No.66 of 2002 was filed by the Opposite Party Nos.1 to 11 to declare the decree passed in TS No.08 of 1981 and 116 of 1986 to be null and void and not binding on them. The suit was decreed declaring the decrees passed in the aforesaid suits to be null and void. The Petitioners are beneficiaries of these decrees as the right, title and interest of their vender was declared in the said suits. Accordingly, the Petitioners filed RFA No.27 of 2023, which is pending in the Court of learned District Judge, Jagatsinghpur. Since the Petitioners apprehended that the Respondents by taking advantage of the decree passed in CS No.66 of 2002 may create third party interest and hindrance in their peaceful enjoyment of the property, they also filed

Digitally Signed // 2 //

Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Dec-2023 10:44:04

application under Section 151 CPC to stay operation of the said decree. Learned appellate Court by a cryptic order rejected the said application stating that the suit is one for declaration and permanent injunction and no ground is made out to stay operation of the judgment and decree. Hence, this CMP has been filed.

3.1 It is submitted by learned counsel for the Petitioners that even judgment in a suit for declaration can be stayed by the appellate Court in view of the ratio decided in Ramesh Chandra Mohapatra Vs. Bishnupriya Mangaraj and others, reported in 2002 SCC OnLine Orissa 168. Learned appellate Court could have waited till appearance Respondents, but said application was rejected at the threshold without assigning any good reason for the same. Hence, he prays for setting aside the impugned order and to stay operation of judgment and decree passed in CS No.66 of 2002.

4. Considering the submission made by learned counsel for the Petitioners and on perusal of the record, it appears that in the impugned order under Annexure-3, learned appellate Court has not assigned any good reason to reject the petition filed under Section 151 CPC to stay the operation of judgment and decree passed in CS No.66 of 2002. It is only stated that the suit is for declaration and permanent injunction and no convincing ground to stay operation of judgment and decree was made out by the Petitioners. Learned appellate Court should have discussed the grounds on which the Petitioners have sought for stay of the judgment and decree in CS No.66 of 2002. The case law in Ramesh Chandra Mohapatra (supra) has not been taken into consideration by learned appellate Court. It is, however, observed

Digitally Signed // 3 //

Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Dec-2023 10:44:04

that in the facts and circumstances, while adjudicating the petition, learned appellate Court should have given an opportunity of hearing to the Respondents/Opposite Parties.

5. In view of the above, this Court sets aside the impugned order dated 20th July, 2023 and remits the matter to learned District Judge, Jagatsinghpur to adjudicate the petition under Section 151 CPC afresh giving opportunity of hearing to the parties concerned keeping in mind the ratio decided in Ramesh Chandra Mohapatra (supra).

6. Accordingly, the CMP is disposed of.

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

(K.R. Mohapatra) Judge

Rojalin