Orissa High Court
Bishnu Priya Nath vs Manoj Kumar Sahu And Others .... Opp. ... on 29 November, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 30-Nov-2023 18:17:14
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1304 OF 2023
Bishnu Priya Nath .... Petitioner
Mr. Prasanta Kumar Satapathy, Advocate
-versus-
Manoj Kumar Sahu and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 29.11.2023
1. 1. This matter is taken up through hybrid mode.
2. Mr. Satapathy, learned counsel for the Petitioner prays
for a direction to score through the unnecessary portion of the
prayer in the CMP, which was typed out inadvertently.
3. Prayer is allowed. Mr. Satapathy, learned counsel for the
Petitioner is permitted to do the needful in Court.
4. Order dated 21st September, 2023 (Annexure-1) passed in
R.F.A. No.78 of 2017 is under challenge in this CMP, whereby
learned District Judge, Balasore did not continue the interim
order of stay of further proceeding of Execution Case No.28 of
2017 pending in the Court of learned Civil Judge (Junior
Division), Balasore.
3. It is submitted by Mr. Satapathy, learned counsel for the
Petitioner that the suit was filed by the Plaintiffs-Opposite
Parties for eviction of the Petitioner. Learned Civil Judge (Junior
Division), Balasore decreed C.S. No.334 of 2010 vide judgment
and decree dated 28th March, 2017 and 11th April, 2017 directing
the Defendants to vacate the possession of the suit land within
three months from the date of the order with a further direction
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 30-Nov-2023 18:17:14
to deliver possession to the Plaintiffs. However, claim for arrear
rent by the Plaintiffs was rejected. Assailing the same, the
Petitioner, who is one of the Defendants, filed R.F.A. No.78 of
2017. Along with the appeal memo, the Petitioner filed an
application to stay further proceeding of Execution Case No.28
of 2017 pending in the Court of learned Civil Judge (Junior
Division), Balasore. Initially, learned appellate Court vide order
dated 22nd December, 2017, passed an interim order staying
further proceeding of the execution case till the next date. The
interim order was extended from time to time. However, the
matter was taken up on 21st September, 2023 on the strength of
an advance petition filed by the Petitioner with an application to
stay further proceeding of the execution case. Learned appellate
Court taking note of the conduct of the Petitioner in not
cooperating with the Court and complying with its order to
proceed with the appeal, refused to pass any interim order.
Hence, this CMP has been filed.
4. It is submitted by learned counsel for the Petitioner that
due to intervention of COVID-19, the Petitioner could not take
steps in the appeal, for which the interim order of stay was not
continuing since 20th February, 2020. When the Plaintiffs-
Opposite Parties proceeded with the execution case, the
Petitioner was constrained to move an application for interim
order. It is his contention that admittedly, the Petitioner has
made certain defaults. However, the impugned order will
prejudice her immensely as she will be evicted from the suit land
if any interim protection is not granted. Learned appellate Court
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 30-Nov-2023 18:17:14
failed to appreciate the same. Hence, he prays for setting aside
the impugned order dated 21st September, 2023.
5. Considering the submission made by learned counsel for
the Petitioner and on perusal of the impugned order under
Annexure-1, it appears that the appeal against Respondent Nos.8
to 10 has already dismissed due to failure on the part of the
Petitioner to take out notice on them. Mr. Satapathy, learned
counsel also submits that the Petitioner does not claim any relief
against Defendant Nos.8 to 10. Defendant Nos.1 to 7 are the
contesting parties. Notice on them has already been made
sufficient and the appeal is ready for hearing. In view of the
above, this Court feels that the Petitioner should be given
another opportunity to renew his prayer.
6. Accordingly, the CMP is disposed of with an observation
that in the event the Petitioner files a fresh application for stay of
further proceeding of Execution Case No.28 of 2017 pending in
the Court of leaned Civil Judge (Junior Division), Balasore and
an undertaking that she will participate in the hearing of the
appeal without seeking for any adjournment, the same shall be
considered on its own merit without being influenced by any
observation made in the impugned order under Annexure-1.
Learned trial Court, if so feels, may also impose adequate cost
for any prejudice caused to the contesting Respondents, in the
event, it proposes to allow the said application.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
