Orissa High Court
Laxmipriya Sahu vs Amulya Kumar Sahu And Others .... Opp. ... on 8 December, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 11-Dec-2023 18:17:38
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 1449 OF 2023
Laxmipriya Sahu .... Petitioner
Mr. Amit Prasad Bose, Advocate
-versus-
Amulya Kumar Sahu and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 08.12.2023
1. 1. This matter is taken up through hybrid mode.
2. Order dated 7th November, 2023 (Annexure-1) passed by
learned District Judge, Bargarh in RFA No.10 of 2023 is under
challenge in this CMP, whereby the objection with regard to
deficit court fee was directed to be considered at the time of
hearing of the appeal.
3. Mr. Bose, learned counsel for the Petitioner submits that
CS No.72 of 2015 was filed for the following reliefs:-
"The Plaintiffs therefore pray that:
i. The suit 'A' schedule land be partitioned and the
share of the plaintiffs be carved out and possession
thereof be delivered to them through process of court;
ii. The defendant no.1 (one) and 2(two) be directed to
pay to the each plaintiffs the sum of Rs.33,96,090.85/-
(rupees thirty-three lakh ninety-six thousand ninety and
eight-five paise) towards their share from compensation
amount (after deducting the amount of Rs.20,00,000/-
which each of the plaintiff have already received) along
with the pendente lite and future interest @ 9% (nine
percent) per annum and;
iii) The suit be decreed with cost besides any fit and
equitable relief."
The suit was decreed vide judgment dated 3rd August, 2023 with
the following order:-
Digitally Signed // 2 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 11-Dec-2023 18:17:38
"The suit be and the same is preliminarily decreed on
contest the defendants, but in the circumstances without
any cost. The against plaintiffs and the defendants have
got 1/4th (one-forth) share each in the 'A' schedule
property which remains after exclusion of schedule 'B'
property. Further, the plaintiffs are entitled to get Rs.
33,96,090.85/- each from the defendants towards the
remaining compensation amount. The defendants are
directed to pay the said amount to the plaintiffs within 3
(three) months of this order. In case of default of such
payment by the defendants, the plaintiffs are at liberty to
get the amount realized from them as per due procedure
of law. The parties are also directed to effect an
amicable partition with respect to the 'A' schedule land
excluding the 'B' schedule land within 3(three) months of
this order; failing which the parties to the suit are at
liberty to approach this Court to carve out their share by
filing Final Decree proceeding."
Assailing the same, the Opposite Parties preferred RFA No.10 of
2023, which is pending in the Court of learned District Judge,
Bargarh. Along with the appeal memo, the Opposite Parties
styling the suit as a suit for partition simiplicitor, paid a fixed
court fee of Rs.300/-.
3.1 It is submitted by Mr. Bose, learned counsel for the
Petitioner that when a money decree is under challenge in RFA
No.10 of 2023, the Opposite Parties have to pay the ad voleram
court fee as paid by the Petitioner/Plaintiff before learned trial
Court. It is submitted that due to non-payment of deficit court
fee, the appeal is not maintainable. Learned appellate Court,
without considering the same, most mechanically directed the
objection with regard to adequacy of court fee to be considered
at the time of hearing of the appeal. In view of the above, this
CMP has been filed.
Digitally Signed // 3 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 11-Dec-2023 18:17:38
3.2 It is his submission that the objection with regard to
payment of court fee should be decided at the threshold before
proceeding with the appeal on merit.
4. Considering the submission made by Mr. Bose, learned
counsel for the Petitioner, this Court is of the considered opinion
that adequacy of court fee is a matter between the Court and the
Appellant. When a Court itself decides to consider the same at
the time of hearing of the appeal, the Petitioner should not have
any objection to the same. Further, learned appellate Court has
directed that the objection raised by the Petitioner with regard to
adequacy of the court fee shall be considered at the time of
hearing of the appeal. It is, therefore, observed that in view of
the direction of learned trial Court, the Petitioner, if so advised,
may raise the question of adequacy of court fee at the time of
hearing of the appeal.
5. In view of the above, I find no infirmity in the impugned
order. Accordingly, the CMP stands dismissed being devoid of
any merit.
(K.R. Mohapatra)
Judge
s.s.satpathy
