Orissa High Court
Hemanta Majhi vs Cuttack Municipal Corporation on 1 August, 2024
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: 02-Aug-2024 13:52:59
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 490 OF 2024
Hemanta Majhi .... Petitioner
Mr. Soumendra Pattanaik, Advocate
-versus-
Cuttack Municipal Corporation, .... Opp. Parties
Cuttack and others
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 01.08.2024
1. 1. This matter is taken up through hybrid mode.
2. The Petitioner in this CMP seeks to assail the order dated
1st August, 2023 (Annexure-6) passed in Execution Case No.80
of 2019, whereby learned 1st Additional Senior Civil Judge,
Cuttack rejected an application filed by the Petitioner under
Order I Rule 10 CPC to be impleded as a party to the execution
case.
3. Mr. Pattanaik, learned counsel for the Petitioner submits
that the suit (T.S. No. 3 of 1969) was filed by the Cuttack
Municipal Corporation (CMC)-Opposite Party No.1 for eviction
of predecessors of Opposite Party Nos.2 to 8 from the properties
pertaining to Sabik Plot No.55 under Khata No.84 corresponding
to Hal Khata No.118 situated in Cuttack Sahar Mouza, Unit-36,
Rajabagicha in the district of Cuttack. The suit land belongs to
Opposite Party No.1. Learned Additional Sub-Judge, Cuttack
dismissed the suit. Assailing the same, the Opposite Party No.1
preferred Title Appeal No.98 of 1981 in which the judgment and
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 02-Aug-2024 13:52:59
decree passed in T.S. No.3 of 1969 was set aside and it is held
that the private Opposite Parties (Respondents therein) are not
entitled to raise any construction over the suit land.
4. It is submitted by Mr. Pattanaik, learned counsel for the
Petitioner that the matter was carried up to Hon'ble Supreme
Court by the private Opposite Parties. But, they lost. As such,
Execution case No.80 of 2019 was filed by the Opposite Party
No.1 for eviction of J.Drs. Since the execution case was not
disposed of for a long time, the Petitioner approached this Court
in W.P.(C) (PIL) No.2155 of 2023, which was disposed of on 2nd
February, 2023 with a direction that the CMC will request the
concerned Court to expedite the execution case. In spite of the
said order under Annexure-4 passed in W.P.(C) (PIL) No.2155
of 2023, CMC did not take any step for expeditious disposal of
the execution case. Hence, the Petitioner, who is an inhabitant in
the locality and is deeply aggrieved by the construction made by
the J.Drs, filed an application before learned Executing Court to
be impleaded as a party to assist the Court for early disposal of
the execution case. The said application has been rejected stating
that the Petitioner is not a party to the original suit, i.e., T.S.
No.3 of 1969. He is completely stranger to the suit and is not
directly related to the suit property.
5. Mr. Pattanaik, learned counsel for the Petitioner further
submits that a party can be impleaded to the execution case to
assist the Court for its effective adjudication and expeditious
disposal. He relies upon the decision of Gafur Khan and others
-v- Government of Odisha and another (decided on 25th March,
1983) in Civil Revision No.118 of 1983, wherein it is held that:
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 02-Aug-2024 13:52:59
"Where execution of a decree would be rendered
infructuous or would become ultimately in executable by op-
position of a person not a party to the suit, such person is a
necessary party. The policy of the law is to avoid
multiplicity of litigation. So, the provision enables the Court
to add persons who are proper parties so that effectual and
complete adjudication is possible. It has also been held that
in determining whether or not the applicants had
proprietary rights in the subject-matter of the action
sufficient to entitle them to be joined as defendants, the true
test lay, not so much in an analysis of what were the
constituents of their rights, but rather in what would be the
result on the subject matter of the action if their rights could
be established."
He, therefore, submits that learned Executing Court
should have taken a pragmatic view and impleaded the present
Petitioner as a party to the execution case.
6. Upon hearing learned counsel for the Petitioner and on
perusal of the record, this Court finds that no case is made out by
the Petitioner to be impleaded as a party to the execution case.
The order passed by this Court in W.P.(C) (PIL) No.2155 of
2023 does not also help the Petitioner in any manner. The same
was disposed of with an observation that CMC will request the
concerned Court to expedite the execution case. Thus, the order
passed in W.P.(C) (PIL) No.2155 of 2023 does not give any
right to the Petitioner to be impleaded as a party to the execution
case. The case law cited by learned counsel for the Petitioner is
of no assistance to him as a prayer for impletion of party made
therein to the suit and not in an execution case. Further the ratio
decided therein has no application to the facts and circumstances
of present case. Thus, I find no infirmity in the impugned order
under Annexure-6.
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 02-Aug-2024 13:52:59
7. Accordingly, the CMP is disposed of with an observation
that since the execution case is of the year, 2019, learned
Executing Court should take all possible steps to see that it is
disposed of at the earliest in terms of the ratio decided in case of
Rahul S Shah -v- Jinendra Kumar Gandhi and others,
reported in (2021) 6 SCC 418, if there is no legal impediment.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
