Orissa High Court
Subash Chandra Tarenia vs Pradip Kumar Tarenia And Others on 13 September, 2023
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 13-Sep-2023 18:05:38
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 459 OF 2019
Subash Chandra Tarenia .... Petitioner
Mr. Budhiram Das, Advocate
-versus-
Pradip Kumar Tarenia and others .... Opp. Parties
Mr. Nityabrata Behuria, Advocate
(For Opp. Party No.1)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 13.09.2023
9. 1. This matter is taken up through hybrid mode.
2. The Petitioner in this CMP seeks to assail the order dated
2nd March, 2019 (Annexure-11) passed by learned Civil Judge
(Junior Division), Jagatsinghpur in Execution Case No.325 of
2014, whereby an application filed by the Petitioner for stay of
execution proceeding till disposal of C.S. No.183 of 2017
pending in the Court of learned Civil Judge (Senior Division),
Jagatsinghpur, has been rejected.
3. Mr. Das, learned counsel for the Petitioner submits that
C.S. No.111 of 2013 was filed by the Plaintiff-Opposite Party
No.1, Pradip Kumar Tarenia for permanent injunction. The
Petitioner was Defendant No.4 in the said suit. Although it is
stated that the suit was decreed on contest, but the Defendant
No.4-Petitioner did not file his written statement. However, the
suit was decreed vide judgment dated 22nd February, 2017.
Assailing the same, the Petitioner along with others preferred
R.F.A. No.1 of 2016 before learned District Judge,
Signature Not Verified // 2 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 13-Sep-2023 18:05:38
Jagatsinghpur, which was withdrawn on 10th April, 2018.
Subsequently, the Petitioner filed C.S. No.183 of 2017 assailing
the judgment and decree passed in C.S. No.111 of 2013, which
is pending for consideration. In the meantime, the Opposite
Party No.1 filed Execution Case No.325 of 2014. The
Petitioner-J.Dr on his appearance filed an application to stay
further proceeding of execution case till disposal of C.S. No.183
of 2017. The said application was rejected. Hence, this CMP
has been filed.
4. It is submitted by Mr. Das, learned counsel for the
Petitioner that since C.S. No.183 of 2017 relates to a portion of
the suit property, interest of justice will be best served, if further
proceedings of the execution case is stayed till disposal of the
said suit, failing which there is every likelihood that the
Petitioner may be evicted from the suit property. He, however,
submits that a direction for early disposal of C.S. No.183 of
2017 will meet the ends of justice and till then, further
proceedings of the execution case should remain stayed.
5. Mr. Behuria, learned counsel for Opposite Party No.1
submits that C.S. No.111 of 2013 was never disposed of ex
parte. The decree was passed on contest restraining the
Defendant No.4 from entering upon the suit property. After the
decree was passed, Defendant No.4 forcefully entered into
possession over the suit property. Hence, Execution Case
No.325 of 2014 was filed. Assailing the judgment and decree
passed in C.S. No.111 of 2013, the Defendant No.4-Petitioner
along with others filed R.F.A. No.1 of 2016 before learned
District Judge, Jagatsinghpur. The said appeal was withdrawn
Signature Not Verified // 3 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 13-Sep-2023 18:05:38
vide order dated 10th April, 2018 without seeking any liberty to
file a subsequent suit. Further C.S. No.183 of 2017 is only filed
to protract the litigation and to prevent the Opposite Party No.1
from enjoying the fruit of the decree. He, therefore, prays for
dismissal of the CMP.
6. Considering the rival contentions of the parties and on
perusal of the record, it appears that C.S. No.111 of 2013 was
decreed on contest. Assailing the said judgment and decree, the
Defendant No.4-Petitioner along with others preferred R.F.A.
No.1 of 2016, which was withdrawn on 10th April, 2018 without
seeking any liberty. Before that Defendant No.4-Petitioner had
filed C.S. No.183 of 2017. Although it is submitted by Mr. Das,
learned counsel for the Petitioner that further proceeding of the
execution case should be stayed during pendency of C.S. No.183
of 2017, but he could not make out any case in support of his
submission. When a decree in C.S. No.111 of 2013 is passed on
contest and the said decree is put to execution alleging forcible
entry of Defendant No.4-Petitioner to the suit property, mere
filing of a subsequent suit in respect of a portion of the land that
too after withdrawal of R.F.A. No.1 of 2016 without seeking any
liberty, should not be a bottle neck to proceed with the execution
case. It further appears that the appeal preferred by the Petitioner
along with others against the judgment and decree passed in C.S.
No.111 of 2013 was withdrawn without seeking any liberty. As
such, the Opposite Party No.1-D.Hr has every right to get the
decree executed.
Signature Not Verified // 4 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 13-Sep-2023 18:05:38
7. In view of the above, I don't find any infirmity in the
impugned order under Annexure-11 and hence, the CMP being
devoid of any merit stands dismissed.
8. Interim order dated 16th May, 2019 passed in I.A. No.501
of 2019 stands vacated.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
