Deba Shankar Padhy vs Surendra Nath Panda And Others
2023 Latest Caselaw 11547 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                               CMP NO.944 OF 2023
                 Deba Shankar Padhy               ....                   Petitioner
                                          Mr. Sameer Kumar Mishra, Senior Advocate
                               being assisted by Ms. Prajna Smita Mohanty, Advocate
                                        -versus-
                 Surendra Nath Panda and others              ....      Opp. Parties


                             CORAM:
                             JUSTICE K.R. MOHAPATRA
                                     ORDER

Order No.                           22.09.2023

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

2. The Petitioner in this CMP seeks to assail the order dated 26th July, 2023 (Annexure-5) passed by learned Senior Civil Judge, Hinjilicut in E.P. No.01 of 2023 (E.P. No.10 of 2008), whereby an application to stay further proceeding of the Execution Case till disposal of RSA No.168 of 2016 pending before this Court, has been rejected.

3. Mr. Mishra, learned Senior Advocate submits that the suit (TS No.92 of 1999) was filed by the predecessor of Opposite Party Nos. 1 to 4 for permanent injunction to restrain the Defendants therein including the Petitioner from entering upon the suit property and interfering with the possession of the Plaintiff. The suit was decreed ex-parte. The Petitioner filed an application under Order IX Rule 13 CPC to set aside the ex-parte decree which was dismissed. Thereafter, the Petitioner filed a separate suit in C.S. No.31 of 2010 to declare the decree passed in earlier suit to be null and void and not binding on the present Petitioner and also for declaration and injunction. The said suit was decreed declaring the right, title and interest and also granting the prayer for permanent injunction. Said

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decree was set aside in RFA No.74 of 2013 by learned Additional District Judge, Chatrapur, Ganjam. It was, however, held that the Petitioner shall not be evicted from the suit property without following due procedure of law. Assailing the same, the Petitioner has filed RSA No.168 of 2016 which is pending for adjudication before this Court. In the meantime, the Opposite Party Nos. 1 to 4 have also filed C.S. No.33 of 2010 (renumbered as C.S. No.19 of 2012) for recovery of possession of the suit property. The said suit is still pending.

4. During pendency of the suit, an application for stay of further proceeding of the suit was filed by the Petitioner. The Opposite Party Nos. 1 to 4 also filed another suit for recovery of house rent from the Petitioner for occupation of the suit property in C.S. No.13 of 2012. The Petitioner filed separate application for stay of further proceeding of the said suit till disposal of the Second Appeal before this Court. Both the applications were rejected and CMP No.63 of 2018 and CMP No.64 of 2018 were filed assailing the said orders. This Court disposed of both the CMPs vide separate orders dated 27th November, 2019 staying further proceeding of both the suits till disposal of RSA No.168 of 2016. The Opposite Party Nos. 1 to 4 alleging that the Petitioner has illegally entered upon the suit property, had also filed EP No.10 of 2008. The said Execution Proceeding was subsequently renumbered as EP No.1 of 2023. An application with a prayer not to recover the suit property from the Petitioner till disposal of the aforesaid Second Appeal was filed in the said Execution Proceeding. Learned Executing Court, vide order dated 26th July, 2023, rejected the said application. Hence, this CMP has been filed.

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5. It is submitted by Mr. Mishra, learned Senior Advocate that since RSA No.168 of 2016 is pending before this Court in which the right, title and interest of the Petitioner over the suit property is in question, the execution proceeding should be stayed till disposal of said Second Appeal. In the event, the Execution Case is allowed to proceed, there is every likelihood that the petitioner will be evicted from the suit house and thus will be highly prejudiced.

6. Considering the same, this Court also stayed further proceeding of the suits filed by Opposite Party Nos. 1 to 4, one for recovery of possession and another for recovery of rent till disposal of RSA No.168 of 2016. Hence in all fairness, learned trial Court should have stayed the Execution Proceeding till disposal of the aforesaid Second Appeal. He, therefore, prays for setting aside the impugned order.

7. Considering the submission made by learned counsel for the Petitioner, it is apparent that the ex-parte decree passed in T.S. No.92 of 1999 filed by the Predecessor of Opposite Party Nos.1 to 4 for permanent injunction was decreed ex-parte. The said decree has not yet been set aside by any Competent Court of Law. The judgment and order passed in RFA No.74 of 2013 also indicates that the Petitioner shall not be evicted without following due procedure of law.

8. Since there is a decree of permanent of injunction in favour of the Opposite Parties, and it is alleged that the Petitioner has entered upon the suit property after the decree was passed, the Execution Case No.10 of 2008 was filed. Thus, Opposite Party Nos.1 to 4 have taken steps for eviction of the Petitioner and recovery of possession of the suit land from the Petitioner by

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adhering to the procedure of law in levying the execution case. It also appears that vide orders dated 27th October, 2021 and 21st December, 2021, learned Senior Civil Judge, Chatrapur in the Execution Case had already issued direction to the beliff to recover possession of the suit property by breaking open the lock and handover the same to the DHrs. It further appears that similar such application as the present one was rejected by the executing Court, vide order dated 21st February, 2011.

9. Stay of further proceeding of the suit as directed by this Court in CMP No.63 of 2018 and CMP No.64 of 2018 does not stand as a bar to proceed with the case. Since there is no legal impediment as on date to proceed with the Execution Case, learned trial Court has committed no error in rejecting the petition for stay of the Execution Case till disposal of the Second Appeal pending before this Court.

10. Accordingly, I find no infirmity in the impugned order and hence, this CMP, being devoid of any merit, stands dismissed.

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: 25-Sep-2023 10:46:05