Satyanarayan Barik vs Laxmidhar Barik And Another
2023 Latest Caselaw 6496 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 19-May-2023 19:01:36
                                            IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                          CMP No. 436 OF 2023
                                        Satyanarayan Barik                     ....        Petitioner
                                                               Mr. Debendra Kumar Sahoo, Advocate
                                                               -versus-
                                        Laxmidhar Barik and another              ....     Opp. Parties


                                              CORAM:
                                              JUSTICE K.R. MOHAPATRA
                                                               ORDER

                      Order No.                               18.05.2023
                                   I.A. No.518 of 2023
                           1.      1.       This matter is taken up through hybrid mode.

2. This is the application for amendment of the CMP.

3. Considering the submission made by Mr. Sahoo, learned counsel for the Petitioner, amendment sought for is allowed.

4. The consolidated CMP be appropriately placed in the brief.

5. I.A. is disposed of.

(K.R. Mohapatra) Judge

2. CMP No. 436 OF 2023

1. Order dated 21st January, 2023 (Annexure-7) passed by learned Additional Civil Judge (Junior Division), Ranapur in Civil Suit No.12 of 2015 (F.D.) is under challenge in this CMP, whereby the report of the Salaried Amin has been accepted by the learned trial Court.

2. Mr. Sahoo, learned counsel submits that the Petitioner is the Defendant No.2 in Civil Suit No.12 of 2015, which was filed

Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa for partition. The suit was primarily decreed vide judgment dated Date: 19-May-2023 19:01:36 28th August, 2015 with the following order:

"The suit be and same is preliminarily decreed on contest against defendant but under the circumstances without any cost. The parties are directed to make amicable partition of the suit properties in carving out their share each as discussed above within two months failing which any of them are at liberty to approach the Court for deputation of Civil Court Commissioner for carving out their share.

Advocates fees at contested scale."

3. After that, the Plaintiff-Opposite Party No.1 initiated final decree proceeding. Salaried Amin was appointed to effect partition as per the preliminary decree. The Petitioner-Defendant No.2 submitted his objection to the preliminary decree vide Annexure-6. Learned trial Court rejected the same without assigning any reason and accepted the report of the Salaried Amin. Hence this CMP has been filed.

4. Considering the submission made by the learned counsel for the Petitioner and on perusal of the impugned order, it appears that although learned trial Court referred to the objection filed by the Defendant No.2, but has not discussed the same while passing the impugned order. The finding arrived at by learned trial Court is not a reasoned one, as the objection raised by the Petitioner has not been discussed.

5. In view of that matter, this Court feels that no purpose will be served by keeping this matter pending before this Court awaiting response from the opposite Party. Accordingly, the impugned order is set aside and the matter is remitted back to learned trial Court to consider the objection raised by the Petitioner as under Annexure-6 in accordance with law giving

Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa opportunity of hearing to the parties concerned. The acceptance of Date: 19-May-2023 19:01:36 the report of the Salaried Amin shall be subject to the said order.

6. With the aforesaid observation and direction this CMP is disposed of.

7. Since this CMP is disposed of without issuing notice to the Opposite Parties, they are at liberty to seek variation of this order, if they feel aggrieved.

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

(K.R. Mohapatra) Judge

Rojalin