Daitari Sahu And Others vs Akhaya Nath And Others
2023 Latest Caselaw 1640 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 CMP No. 57 OF 2023
                 Daitari Sahu and others                  ....      Petitioners
                                           Mr. Pravat Kumar Biswal, Advocate

                                            -versus-
                 Akhaya Nath and others                    ....    Opp. Parties


                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             21.02.2023
   2.       1.      This matter is taken up through hybrid mode.

2. The Petitioners in this CMP seek to assail the notice issued by the Civil Court Commissioner, Cuttack on 9th January, 2023 (Annexure-6) in Execution Case No.1 of 2018 for demarcation and delivery of possession on 25th January, 2023.

3. Mr. Biswal, learned counsel for the Petitioners submits that Execution Case No.1 of 2018 has been filed for execution of judgment and decree in C.S. No.3 of 2012 passed by learned Civil Judge (Junior Division), Salipur. Assailing the said judgment and decree, R.F.A. No.3 of 2023 has been filed, which is pending in the Court of learned Additional District Judge, Salipur. An application for stay of further proceeding of Execution Case No.1 of 2018 is also pending for consideration. At that juncture, notice under Annexure-6 is issued, which is not sustainable. It is submitted that it will take some time to get an order of stay in Execution Case No.1 of 2018. Thus, the Petitioner should be protected in the interregnum. He, therefore, prays for setting aside the impugned notice under Annexure-6.

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4. Considering the submission made by learned counsel for the Petitioner and on perusal of the notice under Annexure-6, it appears that the date of appearance was 25th January, 2023, which has lapsed in the meantime. Thus, the notice under Annexure-6 is no more available to be challenged in this CMP. Further the order pursuant to which notice under Annexure-6 was issued has not been challenged. In view of the Order XLI Rule 5(1) C.P.C., pendency of an appeal does not amount to stay operation of judgment and decree.

5. In view of the above, the CMP being devoid of any merit stands dismissed.

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

                                      (K.R. Mohapatra)
ms                                          Judge