Bhagabata Samal vs Rashmi Kanta Sahoo
2023 Latest Caselaw 1875 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   CMP No. 504 of 2022
                 Bhagabata Samal                        ....       Petitioner
                                          Mr. Deepak Kumar Pani, Advocate
                             on behalf of Mr. Gajendra Nath Rout, Advocate
                                          -versus-
                 Rashmi Kanta Sahoo                       ....     Opp. Party
                                        Mr. Sarathi Jyoti Mohanty, Advocate

                                CORAM:
                                JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             01.03.2023

 9.         1.      This matter is taken up through Hybrid mode.

2. Order dated 23rd December, 2021 (Annexure-6) passed by learned Senior Civil Judge, Jajpur in TS No.246 of 1993 (FD) is under challenge in this CMP, whereby the direction has been issued to provide necessary Police assistance to the Civil Court Commissioner for implementation of the order of the Court and to take necessary steps to prevent the breach of peace at the time of demarcation and delivery of possession as per the date fixed by him. Petitioner also assails the order dated 22nd April, 2022 (Annexure-8) passed therein, whereby learned trial Court refused to recall the order dated 23rd December, 2021 (Annexure-6).

3. Mr. Pani, learned counsel being authorized by Mr. Rout, learned counsel for the Petitioner submits that TS No.246 of 1993 was filed by the Opposite Party for partition and allotment of 1/7th share in his favour. TS No.154 of 1995 was filed by the

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Petitioner for declaring that right, title and interest over the suit property. TS No.155 of 1995 was filed for declaration of title of the suit property by adverse possession. A common judgment was passed in all the three suits on 11th April 2006 allotting 6/7th and 1/7th share of the suit property in favour of Petitioner and Opposite Parties respectively. Accordingly, final decree proceeding was initiated and writ was issued to the Civil Court Commissioner to carve out and allot shares by demarcation. However, the Civil Court Commissioner in his report dated 25th April, 2021 stated that on two occasions notices were issued by the Defendant (present Petitioner) to secure his presence at the spot for demarcation of the suit land, but he did not remain present. When the Commissioner arrived at the spot, he found that though the Plaintiff was present along with village gentries, the residential house of the Defendant was found locked from inside even though his family members were present inside. Accordingly, the Civil Court Commissioner could not demarcate and allot the share. The same occasioned to pass the order under Annexure-6. Since Defendant /Petitioner was not cooperating with the Court Commissioner a direction was issued to provide necessary Police assistance to the Commissioner to implement the order of the Court and take necessary steps to prevent breach of peace at the spot at the time of demarcation and delivery of possession by the Civil Court Commissioner.

4. It is submitted by Mr. Pani, learned Counsel that writ was issued to the Civil Court Commissioner for demarcation and final allotment. No writ was issued for delivery of possession. However, learned trial Court proceeded further to

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direct that Police assistance should be given to the Commissioner for demarcation and delivery of possession. Assailing the said order, the Petitioner had moved this Court in CMP No.29 of 2022, which was disposed of on 7th February, 2022 with the following direction:-

"2. On the own submission of learned counsel appearing for the petitioner that there is in fact no obstruction in working out the direction of the final decree court. In such recording of submission of learned counsel for the petitioner, this Court finds there should not be any prejudice even if Police help is taken for executing the direction in final decree proceeding.

3. The C.M.P. stands disposed of with the observation made hereinabove."

Since no direction was given to Civil Court Commissioner for delivery of possession, the Petitioner filed an application to recall the said order and confine the order for providing Police assistance for assisting the Commissioner to act in accordance with the writ issued. The said application was rejected vide order dated 22nd April, 2018 (Annexure-8) holding that the Court has become functus officio after the order under Annexure-6 was passed and also in view of the order passed in CMP No.29 of 2022, as well. It is submitted that by passing the impugned order, learned trial Court has committed an error in directing the Civil Court Commissioner to deliver possession of the suit land by Police assistance. Thus, both the impugned orders, i.e., Annexures-6 and 8 are not sustainable and are liable to be set aside.

5. Mr. Mohanty, learned counsel for the Plaintiff/Opposite Party submits that parties are fighting litigations since 1993 and

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the Petitioner is creating all sorts of hindrances and is not allowing the Opposite Party to enjoy the fruit of the decree. Order under Annexure-6 was challenged before this Court in the earlier CMP and this Court without interfering the same, held that "there should not be any prejudice even if Police help is taken for executing the direction in final decree proceeding". In view of observation of this Court, the impugned order is no more available to be challenged either by filing petition for recall before learned trial Court or by filing the present CMP. If the present CMP is entertained, it would amount to sitting over the order passed in earlier CMP, i.e., CMP No.29 of 2022, which may not be proper. Accordingly, he prays for dismissal of the CMP.

6. Considering the rival contentions of the parties and on perusal of record, it appears that writ was issued to the Civil Court Commissioner for demarcation and allotment of share in terms of preliminary decree passed in TS No.246 of 1993. Looking at the conduct of the present Petitioner in not cooperating the Civil Court Commissioner, it is directed that Police assistance shall be given to the Court Commissioner for demarcation and delivery of possession. The said order was tested before this Court in CMP No.29 of 2022 and the said CMP was disposed of without interfering in the impugned order under Annexure-6 observing as above.

7. Thus, the order under Annexure-6 is no more available to be challenged either by filing the petition for recall or by filing the present CMP, more particularly when the order passed in CMP No.29 of 2022 has not yet been challenged and thus

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attained finality. Thus, I am not inclined to interfere with the order under Annexures-6 and 8.

8. Accordingly, the CMP being devoid of any merit stands dismissed.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge

s.s.satapathy