Orissa High Court
Sujaya Shankar Singh Deo vs Puspa Kumari Devi And Others .... Opp. ... on 6 November, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 1142 OF 2024
Sujaya Shankar Singh Deo .... Petitioners
Mr. Santosh Kumar Samantaray, Advocate
-versus-
Puspa Kumari Devi and others .... Opp. Parties
Mr. Sanjiv Joshi, Advocate
(For Opp. Party No.1)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 06.11.2024
3. 1. This matter is taken up through hybrid mode.
2. Order dated 16th September, 2024 (Annexure-9) passed
in Civil Revision No.9 of 2023 is under challenge in this CMP,
whereby learned District Judge, Kalahandi at Bhawanipatna
dismissing the reivision confirmed the order dated 16th October,
2023 (Annexure-8) passed by learned Civil Judge (Senior
Division), Bhawanipatna in Execution Case No.2 of 2022
(arising out of RFA No. 3/54 of 2010-13) dismissing an
application under Section 47 C.P.C. filed by the Petitioner-J.Dr.
3. Shorn of unnecessary details, the relevant facts for
adjudication are stated hereunder:
4. In Execution Case No.2 of 2022, judgment and decree
passed in RFA No. 3/54 of 2010-13 has been put to execution.
The Petitioner-J.Dr on his appearance filed an application under
Section 47 C.P.C. Learned Executing Court, without registering
the same as a separate miscellaneous judicial case as required
under Rule 431 of the GRCO (Civil) Vol.1, entertained the
// 2 //
same. Objection to the petition under Section 47 C.P.C. was
also filed. Learned Executing Court, however, vide its order
dated 16th October, 2023 (Annexure-8) dismissed the application
filed by the Petitioner under Section 47 C.P.C. The Petitioner
being aggrieved filed Civil Revision No. 9 of 2023, which was
also dismissed vide order dated 16th September, 2024
(Annexure-9). Both the orders under Annexures-8 and 9 are
under challenge in this CMP.
5. Mr. Samantaray, learned counsel for the Petitioner
submits that although specific objection with regard to
executability of the decree was raised at paragraphs-2, 3 and 4 of
the petition filed by the Petitioner under Section 47 C.P.C., but
none of the objections were dealt with by learned Executing
Court while adjudicating the petition. Only observing that the
execution case was filed in the year, 2022 to execute the decree
passed in RFA No.3/54 of 2010-13 and in the meantime, ten
years have already elapsed, the petition was rejected. It was
further observed that this Court had already dismissed RSA
No.59 of 2014 filed against the decree passed in RFA No.3/54 of
2010-13. Learned Revisional Court also without discussing the
grounds taken by the Petitioner in the petition under Section 47
C.P.C. passed the impugned order under Annexure-9. Both the
orders under Annexures-8 and 9 are non-speaking and cryptic.
As such, the same are not sustainable and are liable to be set
aside.
6. Mr. Joshi, learned counsel for Opposite Party No.1-
D.Hr. vehemently objects to the same. It is his submission that
the contentions raised by learned counsel for the parties have
// 3 //
been discussed in detail by the Revisional Court in the impugned
order under Annexure-9. Taking into consideration the
contentions raised and law involved, learned District Judge,
Kalahandi at Bhawanipatna passed the impugned order under
Annexure-9, which warrants no interference. It is further
submitted that the petition under Section 47 C.P.C. was filed
only to linger the execution proceeding and to see that the
Opposite Party No.1-D.Hr is prevented from enjoying the fruit
of the decree. Hence, he prays for dismissal of the CMP.
7. Taking note of the submissions made by learned counsel
for the parties and on perusal of the record, it is apparent that
learned Executing Court has not registered the petition under
Section 47 C.P.C. as a separate miscellaneous judicial case as
required under Rule 431 of the GRCO (Civil) Vol.1. Further, it
appears that specific objection with regard to executability of the
decree has been raised by the Petitioner in his petition under
Section 47 C.P.C. None of the objections appears to have been
taken into consideration by learned Executing Court. The
impugned order under Annexure-8 is apparently cryptic and
non-speaking one. As such, the same is not sustainable. The
said order under Annexure-8 was also challenged in Civil
Revision No. 9 of 2023 and learned District Judge, Kalahandi at
Bhawanipatna also committed the similar error in not discussing
the objection raised by the Petitioner in his petition under
Section 47 C.P.C. Although it has recorded the contentions
raised by the respective parties, but none of the contentions were
dealt with and no finding is recorded by learned District Judge,
Kalahandi at Bhawanipatna with regard to sustainability of the
// 4 //
grounds raised by the Petitioner-J.Dr. so far as executability of
the decree is concerned. Said order is also cryptic and non-
speaking one. As such, both the orders under Annexures-8 and 9
are set aside and the matter is remitted to the learned Executing
Court to register the petition under Section 47 C.P.C. as a
separate miscellaneous judicial case and adjudicate the petition,
giving opportunity of hearing to the parties concerned and
recording findings with regard to the grounds taken by the
Petitioner-J.Dr. in the petition vis-à-vis the objection raised by
the Opposite Party No.1-D.Hr.
8. With the aforesaid observation and direction, the CMP is
disposed of.
Urgent certified copy of this order be granted on proper
application.
bks (K.R. Mohapatra)
Judge
Location: High Court of Orissa, Cuttack
