Rabindra Nayak vs Bhima Nayak
2023 Latest Caselaw 1187 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                     CMP No.574 of 2015
                 Rabindra Nayak                         ....        Petitioner
                                              Mr. Siba Sakti Rath, Advocate
                               on behalf of Mr. Soubhagya S. Das, Advocate
                                           -versus-
                 Bhima Nayak                               ....        Opp. Party
                                        Mr. Dayananda Mohapatra, Advocate

                           CORAM:
                           JUSTICE K.R. MOHAPATRA
                                        ORDER

Order No.                              03.02.2023
 9.         1.       This matter is taken up through Hybrid mode.

2. Order dated 7th April, 2014 (Annexure-3) passed by learned District Judge, Puri in FAO No.69 of 2013 is under challenge in this CMP, whereby the appeal was allowed reversing the order dated 22nd July, 2013 (Annexure-1) passed by learned Civil Judge (Senior Division), Nimapara in a petition under Order XXXIX Rules 1 and 2 CPC in IA No.15 of 2013 (arising out of CS No.31 of 2013).

3. Mr. Rath, learned counsel appearing on behalf of Mr. Mr. Soubhagya S. Das, learned counsel for the Petitioner, submits that Defendant No.1 in the suit is the Petitioner in this case. He has sold a part of the suit property to Defendant No.2. Alleging that the property stands in jointness, Plaintiff/Opposite Party No.1 filed CS No.31 of 2013 for partition. Along with the plaint, the Plaintiff also filed an application under Order XXXIX Rules 1 and 2 CPC with a prayer to restrain the Defendants therein from disturbing the possession over the suit land and from making further alienation in respect of the suit

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property. The said application was dismissed on contest vide order dated 22nd July, 2013 (Annexure-1). Assailing the same the Plaintiff preferred appeal in FAO No.69 of 2013, which was allowed vide judgment dated 7th April, 2014 (Annexure-3) directing the parties to maintain status quo restraining the Defendants from alienating the suit property or portion thereof in any manner till disposal of the suit.

3.1 It is his submission that the Defendant No.1/Petitioner is the rightful owner of the property. He sold the property to Defendant No.2/Opposite Party No.2 by executing registered sale deed. Since the Defendant No. 2 is in possession over the suit land. Electricity bills also stand in his name. Learned appellate Court though recorded the finding that Defendant/Opposite Party No.2 is in possession over the suit land, but passed a restraint order erroneously. Hence, he prays for setting aside the impugned order under Annexure-3.

4. Mr. Mohapatra, learned counsel for the Plaintiff/Opposite Party No.1 refuting the submission of learned counsel for the Petitioner contends that the Defendant No.2 against whom the impugned order has been passed does not challenge the same. It is the Defendant No.1, who had already alienated the property to Defendant No.2, has challenged the impugned order. Although notices were issued in the matter, but no interim order has been passed in the CMP. The Petitioner/Defendant No.1 has no locus standi to challenge the impugned order. Hence, he prays for dismissal of the CMP.

4. Considering the rival contentions of the parties and on perusal of record, it appears that the property stands recorded jointly in the name of the Plaintiff and Defendant No.1

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(Opposite Party No.1 and Petitioner respectively). The Defendant No.1 stated to have sold a portion of the suit property in favour of Defendant No.2/Opposite Party No.2. Admittedly, the Defendant No.2 does not assail the order under Annexure-3. It further appears that the impugned order was passed on 7th April, 2014. In the meantime, more than nine years have already elapsed. No interim order has been passed in this CMP, while issuing notice in the matter. On perusal of the impugned order, it appears that the same has been passed discussing the materials available on record in detail and considering the rival contentions of the parties.

5. In view of the above, I am not inclined to interfere in the impugned order. Accordingly, the CMP is dismissed. It is further directed that the suit being of the year 2013, learned trial Court shall make all endeavour for early disposal of the suit in accordance with law, if there is no legal impediment Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge

s.s.satapathy