The Secretary vs Gitanjali Bai And Others
2023 Latest Caselaw 11512 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 CMP NO.932 OF 2023
                 The Secretary, BSE, Odisha         ....                 Petitioners
                                                       Mr. S.S. Rao, Senior Advocate
                                 being assisted by Mr. Anish Ankur Mishra, Advocate
                                            -versus-
                 Gitanjali Bai and others                     ....     Opp. Parties

                                                  Mr. Ajit Kumar Tripathy, Advocate
                                                              (For Opp. Party No.1)

                           CORAM:
                           JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                         21.09.2023

 02.        1.       This matter is taken up through hybrid mode.

2. This CMP has been filed assailing the order dated 4th July, 2023 (Annexure-5) passed by learned Civil Judge, Chandikhole in CMA No.86 of 2019, whereby an application filed by the Petitioner under Section 151 CPC to stay the Execution Case No.04 of 2022 pending before the Court, has been rejected.

3. Mr. Rao, learned Senior Advocate submits that the C.S. No.146 of 2016 has been decreed ex-parte in favour of Opposite Party No.1 vide judgment dated 25th April, 2018. Subsequently, CMA No.86 of 2019 has been filed under Order IX Rule 13 CPC to set aside the ex-parte decree passed against the Petitioner which is pending for consideration and the petition for condonation of delay has not yet been taken up on merit.

4. At that juncture, Opposite Party No.1 filed Execution Case No.04 of 2022 for execution of the ex-parte decree. Finding no other alternative, the Petitioner filed an application in CMA No.86 of 2019 under Section 151 CPC to stay further proceeding of Execution Case No.04 of 2022, which was rejected observing that

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the application under Section 151 CPC would not be maintainable more particularly when the petition for condonation of delay has not yet been considered. Hence, this CMP has been filed.

5. In course of hearing, Mr. Rao, learned Senior Advocate submits that the proper procedure for the Petitioner would have been to file an application under Order XXI Rule 26 CPC in the execution proceeding for stay of further proceedings. Instead, an application under Section 151 CPC was filed. He, therefore, prays for withdrawal of the CMP submitting that the Petitioner would file an application under Order XXI Rule 26 CPC for stay for the Execution Case No.4 of 2022 and in that event, the same may be directed to be considered on its own merit.

6. Mr. Tripathy, learned counsel for the Opposite Party No.1 does not have any objection to the same.

7. In view of the above, the CMP is disposed of as withdrawn.

8. If such an application is filed, the same may be considered at its own merit giving opportunity of hearing to the parties concerned.

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

(K.R. Mohapatra) Judge Rojalin

Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Sep-2023 10:33:12