Orissa High Court
Kusuma Das vs Minati Das And Others on 7 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 270 OF 2023
Kusuma Das .... Petitioner
Mr. Swarup Kumar Pattnaik, Advocate
-versus-
Minati Das and others .... Opp. Parties
Mr.Anjan Kumar Jena, Advocate
(For Opp. Party No.1)
Mr. J. Biswal, Advocate
(For Opp. Party Nos.2 and 3)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 07.07.2023
2. 1. This matter is taken up through hybrid mode.
2. The Petitioner in this CMP seeks to assail the order
dated 2nd November, 2022 (Annexure-1) passed by learned
Senior Civil Judge, Jajpur in C.S.(FD) No.19 of 2021 (arising
out of C.S. No.207 of 2019), whereby an application filed by the
Defendant No.1-Petitioner to stay further proceedings of the
final decree proceeding till disposal of CMA No. 32 of 2021
filed under Order IX Rule 13 C.P.C. has been rejected.
3. It is submitted by Mr. Pattnaik, learned counsel that the
Petitioner being the Defendant No.1 in a partition suit (C.S.
No.207 of 2019) was set ex parte. Although it is observed in
para-3 of the judgment that the Defendant No.1 was set ex parte,
but it was reflected in the order that the suit was decreed on
contest. However, the Petitioner being set ex parte has filed
CMA No. 32 of 2021 under Order IX Rule 13 C.P.C., which is
pending adjudication. In the meantime, the Plaintiff-Opposite
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Party No.1 initiated final decree proceeding. The Defendant
No.1 appeared in the said proceeding and filed an application
under Section 151 C.P.C. to stay its further proceedings till
disposal of CMA No.32 of 2021, which was rejected vide order
under Annexure-1. Hence, this CMP has been filed.
3.1 It is submitted by Mr. Pattnaik, learned counsel for the
Petitioner that learned trial Court proceeded on a misconception
that C.S. No.207 of 2019 was decreed on contest. Further, it was
observed that there is no provision for stay of the final decree
proceeding and when the shares have already been allotted, the
Defendant No.1 will not be prejudiced, if the final decree
proceeding continues. Such an observation is not sustainable as
Section 94(e) C.P.C. clearly provides that the Court may pass an
interlocutory order as may appear to the Court to be just and
convenient. Since a proceeding under Order IX Rule 13 C.P.C.
is still pending, allotment of share in the final decree proceeding
will certainly prejudice the Defendant No.1-Petitioner. Hence,
he prays for setting aside the impugned order and to stay of the
final decree proceeding till disposal of CMA No.32 of 2021.
4. Mr. Jena, learned counsel for the Plaintiff-Opposite
Party No.1 submits that the Petitioner had filed an application
under Section 151 C.P.C., which should have been registered as
a Misc. Case in view of Rule 431(19) of G.R.C.O. (Civil). It is
further submitted that for default of a party, namely, Defendant
No.1, the Plaintiffs should not suffer. In the event ex parte
preliminary decree is set aside, the Petitioner may seek for
allotment of share, if any, pursuant to the fresh preliminary
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decree to be drawn. He, therefore, submits that learned trial
Court has committed no error in passing the impugned order.
Hence, the CMP being devoid of any merit should be dismissed.
5. Considering the submissions made by learned counsel
for the parties and on perusal of the record, it appears that
learned Court proceeded on a misconception that C.S. No. 207
of 2019 was decreed on contest. As submitted by Mr. Pattnaik,
learned counsel for the Petitioner, at para-3 of the judgment of
the suit, it has been clearly stated that the Defendant No.1 was
set ex parte. Of course, while recording the order, learned trial
Court held that the suit is decreed on contest, but the same is an
inadvertent error in view of the observation made in paragraph-3
of the judgment.
6. Section 94(e) C.P.C. clearly stipulates that the Court
may pass any interlocutory order as may appear to it to be just
and proper. However, the Petitioner has filed an application
under Section 151 C.P.C. Hence, it should have been registered
as a Misc. Case. The contention raised by learned counsel for the
Defendant No.1-Petitioner in the petition for stay of the final
decree proceeding appears to have not been considered. Hence,
this Court feels that the matter requires fresh reconsideration.
7. Accordingly, the impugned order under Annexure-1 is
set aside and the matter is remitted back to learned trial Court for
fresh adjudication of the petition filed under Section 151 C.P.C.,
if necessary, by registering it as a Misc. Case and to proceed
with the matter in accordance with law, giving opportunity of
hearing to the parties concerned. It is expected that learned trial
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shall entertain the application for interim order at the earliest.
This Court, however, has not expressed any opinion on the
merits of case of either parties.
8. The CMP is accordingly disposed of with the aforesaid
observation and direction.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
bks Judge
Signature Not Verified
Digitally Signed
Signed by: BIJAY KUMAR SAHOO
Designation: Ex-Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 08-Jul-2023 14:28:01
