Sushanta Kumar Das vs Bhagwandas Padia And Others .... Opp. ...
2024 Latest Caselaw 508 Ori

Orissa High Court

Sushanta Kumar Das vs Bhagwandas Padia And Others .... Opp. ... on 9 January, 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: 10-Jan-2024 11:58:49

                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                              W.P.(C) No. 33300 OF 2011
                                               Sushanta Kumar Das                   ....       Petitioner
                                                                Mr. Prasanta Kumar Satapathy, Advocate
                                                                      -versus-
                                               Bhagwandas Padia and others          .... Opp. Parties
                                                                     Mr. Susanta Kumar Dash, Advocate
                                                                                  (For Opp. Party No.2)

                                                    CORAM:
                                                    JUSTICE K.R. MOHAPATRA
                                                                    ORDER

                        Order No.                                  09.01.2024
                             11.          1.      This matter is taken up through hybrid mode.

2. The Petitioner describing himself to be the Defendant No.14 filed this writ petition assailing the order dated 18th August, 2011 (Annexure-1) passed by learned Civil Judge (Senior Division), Karanjia in Execution Case No.8 of 1996, whereby an application filed by the Petitioner under Order XXI Rules 99 and 100 CPC, has been rejected.

3. Mr. Satapathy, learned counsel for the Petitioner, at the outset, submitted that the Opposite Party Nos.1 and 2, namely, the D.Hrs have died in the meantime and prays for an adjournment to take steps for substitution.

4. Mr. Dash, learned counsel for Opposite Party Nos.1 and 2 submits that the petition under Order XXI Rules 99 and 100 CPC at the instance of the Petitioner is completely misconceived. Describing himself to be Defendant No.14 and no summon was served on him, an application under Order XXI Rules 99 and 100 CPC was filed. It is his submission that the judgment passed in the suit clearly discloses that the Petitioner has been arrayed as Defendant No.4 as Baltu @ Susanta Das,

Designation: Senior Stenographer

Location: High Court of Orissa, Cuttack Date: 10-Jan-2024 11:58:49

whereas Defendant No.14 is Purna Chandra Sahu. Hence, the Petitioner cannot be Defendant No.14 as alleged. Defendant No.4 contested the suit by filing the written statement. Hence, an application under Order XXI Rules 99 and 100 CPC at the instance of the Petitioner is not maintainable. In view of the above, this Court should not undertake the exercise of substituting Opposite Party Nos.1 and 2 as would render wastage of judicial time.

5. Mr. Satapathy, learned counsel for the Petitioner, however, reiterated his prayer submitting that he will take instruction in that regard from the Petitioner.

6. Considering the submissions made by learned counsel for the parties and on perusal of the record, it appears that the Petitioner was arrayed as Defendant No.4 in the suit and the suit was decreed against him on contest. Thus, a petition under Order XXI Rules 99 and 100 CPC at his instance is not maintainable. As such, learned executing Court has committed no error in rejecting the petition under Order XXI Rules 99 and 100 CPC. In view of the above, substitution of Opposite Party Nos.1 and 2 as prayed for by learned counsel for the Petitioner is not necessary in the facts and circumstances of the case.

7. Accordingly, this Court finds no merit in the writ petition and the same is dismissed as such.

8. Interim order dated 2nd February, 2012 passed in M.C. No.20374 of 2011 stands vacated.

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

                                                                              (K.R. Mohapatra)
                ms                                                                  Judge