Orissa High Court
Manju Modi vs Jeypore Municipality on 8 December, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Dec-2023 12:55:44
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 39 OF 2023
Manju Modi .... Petitioner
Mr. Goutam Mukherji, Senior Advocate
being assisted by Mr. A. Mishra, Advocate
-versus-
Jeypore Municipality, Koraput and .... Opp. Parties
others
Mr. P.C. Chhinchani, Advocate
(For Opp. Party No.1)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 08.12.2023
11. 1. This matter is taken up through hybrid mode.
2. Orders dated 2nd December, 2022 and 9th December, 2022
(Annexure-1) passed by learned Civil Judge (Senior Division),
Jeypore in Execution Petition Case No.28 of 2000 are under
challenge in this CMP.
3. By order dated 2nd December, 2022, learned executing
Court by allowing an application filed by the Opposite Party
No.1-D.Hr, directed issuance of warrant to the Bailiff against the
J.Drs for execution of the decree. By order dated 9th December,
2022, learned executing Court recorded that warrant to the
Bailiff issued against the J.Drs is back after execution along with
receipts.
4. It is submitted by Mr. Mukherji, learned Senior Advocate
appearing for the Petitioner that both the orders under Annexure-
1 are nullity in the eye of law as the Petitioner was never given
an opportunity of hearing in the execution proceeding itself.
Since both the orders under Annexure-1 are nullity in the eye of
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 11-Dec-2023 12:55:44
law, further proceeding in Execution Petition Case No.28 of
2000 and orders passed are also nullity.
5. This matter was heard on several occasions and it was
last listed on 15th November, 2023, on which date Mr.
Chhinchani, learned counsel for the Opposite Party No.1-D.Hr
submitted that the execution Petition Case No.28 of 2000 has
already been disposed of vide order dated 17th December, 2022.
Although the said fact was known to the Petitioner-J.Dr, he
without challenging the same has filed several CMPs assailing
different orders. He, therefore, submits that the CMP has
become infructuous.
6. In view of the submission made by Mr. Chhinchani,
learned counsel for the Opposite Party No.1-D.Hr, Mr.
Mukherji, learned Senior Advocate for the Petitioner took an
adjournment on 15th November, 2023 to take instruction on the
same. Today, he produces the certified copy of the order sheet
in Execution Petition Case No.28 of 2000, which is taken on
record. On perusal of the said order sheet, it appears that
Execution Petition Case No.28 of 2000 has already been
disposed of by order dated 17th December, 2022. Order dated
17th December, 2022 reads as under:
"Counsels for the parties are present. Ld.
Counsel for the D.Hr filed a memo and submitted that as
per order of this court dated 02.12.2022 the bailiff went
on the spot and vacated the decreetal land from J.Drs
and delivered the same to the D.Hr. The D.Hr already got
their decreetal land.
Having heard from both sides, considering the
report of bailiff as D.Hr already got the decreetal land
and there is no other claim by D.Hr from the J.Drs as
such this court is inclined to dispose of the present
Execution Petition with full satisfaction of the D.Hr. As
such in view of the circumstance, the Execution Petition
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 11-Dec-2023 12:55:44
28 of 2000 be closed with full satisfaction of the D.Hr.
The present Execution Petition need not be shown for any
statistical purpose henceforth.
Necessary entries be made with the concerned
registers."
7. From the above, it is clear that pursuant to the order dated
2nd December, 2022, the Bailiff went to the spot and vacated the
decreetal land by evicting the J.Dr and delivered the same to the
D.Hr, the D.Hr already got their decreetal land. Observing the
same, Execution Petition Case No.28 of 2000 was closed to the
full satisfaction of the D.Hr.
8. It is submitted by Mr. Mukherji, learned Senior Advocate
that proceeding after 3rd September, 2019 is a nullity when Rabi
Kumar Modi, the judgment Debtor died and the execution case
proceeded without substituting him.
9. Considering the submissions made by learned counsel for
the parties, this Court finds that this CMP is filed on 12th
January, 2023 without assailing the order dated 17th December,
2022. Further at Paragraph-12 of the CMP, the Petitioner-J.Dr
averred as under:
"12. That, the Ld. Executing Court has illegally
proceeded with the Execution Case even without
proper notice to the Judgment Debtors and ultimately
has reflected in the impugned order that the said
decree has been executed though the Judgment
Debtors are still in possession over the property. The
situation implies that the decree has not been executed
to its satisfaction and the same is only on pen and
paper. Thus, the order dated 09.12.2022 is nothing but
an order showing disposal of the execution case
though actually the decree has not been executed."
10. On perusal of the averments at Paragraph-12 of the CMP
as quoted above, it is apparent that the Petitioner was aware of
the execution of the decree by the time the CMP was filed. But,
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 11-Dec-2023 12:55:44
for the reasons best known, she did not challenge the order dated
17th December, 2022.
11. Since the execution case has already been disposed of
vide order dated 17th December, 2022 and the said order has not
yet been challenged, this Court is of the considered opinion that
nothing remains to be adjudicated in this CMP. As such,
adjudication of the CMP has become academic.
12. In that view of the matter, this Court disposes of the CMP
as infructuous.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
