Orissa High Court
Bijan Kanti Mandal vs Ashutosh Biswas And Others .... Opp. ... on 19 November, 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: 20-Nov-2024 17:00:36
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 191 OF 2018
Bijan Kanti Mandal .... Petitioner
Ms. Aisworya Dash, Advocate
on behalf of Mr. Gurudutta Senapati, Advocate
-versus-
Ashutosh Biswas and others .... Opp. Parties
Mr. Basudev Mishra, Advocate
(For Opp. Party Nos.1 to 4)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 19.11.2024
8. 1. This matter is taken up through hybrid mode.
2. Order dated 19th December, 2017 (Annexure-6) passed
by learned Civil Judge (Senior Division), Nabarangpur in CMA
No.01 of 2015 (arising out of C.S. No.36 of 2005) is under
challenge in this CMP, whereby an application filed by the
Petitioner challenging the maintainability of the CMA, has been
rejected.
3. Ms. Dash, learned counsel being authorized by Mr.
Senapati, learned counsel for the Petitioner submits that C.S.
No.36 of 2005 has been filed by the Plaintiffs-Opposite Party
Nos.1 to 4 for declaration of their right, title and interest over the
suit property. The said suit was dismissed by learned Civil Judge
(Senior Division), Nabarangpur. Assailing the same, the
Opposite Party Nos.1 to 4 filed RFA No.4 of 2007 and learned
District Judge, Nabarangpur vide judgment dated 24th January,
2014 allowed the appeal holding as under:
// 2 //
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 20-Nov-2024 17:00:36
"In the result, the R.F.A. is allowed on contest
against the respondent, but there shall be no order as to
cost in view of the peculiar facts and circumstances of the
case. The impugned judgment dated 15.02.2007 and
decree dated 24.2.2007 of the learned Civil Judge (Senior
Division), Nabarangpur passed/drawn in C.S. No.36 of
2005 are set aside. In view of my observations (supra),
respecting individual possession of the contesting parties
i.e. plaintiffs-appellants as well as defendant-respondent,
I direct that they will enjoy/get fruits of the judgment only
after registration of the decree going to be drawn in this
case."
4. Since a direction was made that the fruitS of the decree
shall be enjoyed by the parties after registration of the judgment
and decree, the Opposite Party Nos.1 to 4 filed an application
under Section 151 CPC in CMA No.01 of 2015 before learned
Civil Judge (Senior Division), Nabarangpur to send the
judgment and decree for registration. The Petitioner being the
Defendant appeared and filed his objection stating that the CMA
is not maintainable. The Opposite Party Nos.1 to 4 should have
filed an execution case for implementation of the decree instead
of filing a CMA under Section 151 CPC. Learned trial Court
overruling such objection, directed the Opposite Party Nos.1 to 4
to file the copy of the judgment and decree to be sent for
registration. It is submitted by learned counsel for the Petitioner
that a petition under Section 151 CPC would not be
maintainable, as the Plaintiffs-Opposite Party Nos.1 to 4 seek for
execution of the decree passed by learned appellate Court to
send the judgment and decree for registration. Learned trial
Court ignoring the same passed the impugned order. Hence, this
CMP has been filed.
// 3 //
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 20-Nov-2024 17:00:36
5. Mr. Mishra, learned counsel for Opposite Party Nos.1 to
4 vehemently objects to the above. It is his submission that the
decree can only be implemented after its registration, as directed
by learned appellate Court. Hence, an innocuous application
was filed before learned trial Court to send the judgment and
decree for registration. Thus, learned trial Court has committed
no error in rejecting the objection filed by the Petitioner
challenging maintainability of the CMA.
6. Considering the submissions made by learned counsel for
the parties, this Court finds that learned appellate Court has
categorically observed that the fruits of the decree shall be
enjoyed by the parties to the appeal, namely, the parties to the
CMP, after it is registered. Hence, the decree passed by learned
appellate Court can only be executed after its registration.
Accordingly an application was filed to send the judgment and
decree for registration.
7. In view of the above, this Court finds that learned trial
Court has committed no error in entertaining an application filed
for that purpose overruling the objection with regard to
maintainability of the CMA. Hence, the CMP being devoid of
any merit stands dismissed.
8. Interim order dated 17th April, 2018 passed in Misc. Case
No.571 of 2018 stands vacated.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
