Orissa High Court
Laxman Maity vs Golap Rout And Others on 24 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 1379 OF 2022
Laxman Maity .... Petitioner
Mr. Bijay Kumar Mishra, Advocate
-versus-
Golap Rout and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 24.01.2023
1. 1. This matter is taken up through hybrid mode.
2. The Petitioner in this CMP seeks to assail to the
judgment dated 3rd November, 2022 (Annexure-7) passed by
learned Additional District Judge-II, Baripada, Mayurbhanj in
FAO No. 1 of 2014, whereby the order dated 5th December,
2013 passed by learned Civil Judge (Senior Division), Baripada
in I.A. No.86 of 2009 (arising out of C.S. No.46 of 2022) has
been confirmed.
3. Mr. Mishra, learned counsel for the Petitioner submits
that C.S. No.46 of 2002 has been filed for partition. During
pendency of the suit, the matter was referred to Lok Adalat
before which a petition to draw a preliminary decree on
compromise was filed. Accordingly, the suit was preliminarily
decreed vide order dated 28th April, 2022 (Annexure-3) passed
in Lok Adalat. After six years, the final decree proceeding was
initiated at the instance of the Petitioner. Upon receipt of the
notice, the Opposite Party Nos.1 to 3 filed an application on 5th
// 2 //
November, 2009 under Section 151 C.P.C. to set aside the
compromise the decree. Learned Civil Judge (Senior Division),
Bariapda without taking note of the legal position to the effect
that the order of compromise was passed in Lok Adalat and that
the petition to set aside the compromise decree was filed after
lapse of more than seven years, allowed the same vide order
dated 5th December, 2013 (Annexure-5) and recalled the order
of compromise. Being not advised properly, the Petitioner
preferred FAO No.1 of 2014, which was dismissed by learned
Additional District Judge-II, Baripada vide order dated 3rd
November, 2022 (Annexure-7). Hence, this CMP has been
filed.
4. It is his submission that on perusal of the order dated 5th
December, 2013 (Annexure-5), it is apparent that learned trial
Court has passed the order under a misconception. It is further
submitted that opening line as well as the order under
Annexure-5 reflects that the decree was passed on 23rd
September, 2009, but no such decree in C.S. No.46 of 2002 was
passed on the said date. In fact, the suit was preliminarily
decreed before Lok Adalat on 19th April, 2002 on compromise
(Annexure-3). It is his submission that the impugned order
under Annexure-5 suffers from surmises and conjectures as only
on presumption the said order has been passed.
5. In course of hearing, Mr. Mishra, learned counsel for the
Petitioner submits that although objection to that effect was
filed, but the same was not taken into consideration by learned
trial Court. He, however, submits that interest of justice will be
best served, if the Petitioner files an application to recall the
// 3 //
order dated 5th December, 2013 (Annexure-5) and to hear the
petition under Section 151 C.P.C. afresh giving opportunity of
hearing to the parties concerned.
6 In view of the above, this Court without delving into the
merit of the impugned order under Annexure-7 disposes of this
CMP with an observation that in the event the Petitioner files an
application to recall the order dated 5th December, 2013
(Annexure-5) and to hear the petition under Section 151 C.P.C.
afresh within a period of ten days hence along with certified
copy of this order, learned trial Court should make an endeavour
to dispose of the same on its own merit expeditiously giving
opportunity of hearing to the parties concerned.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
bks Judge
