Orissa High Court
Yogesh Agarwal vs Sogara Khatun ..... Opposite Parties on 7 April, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 495 of 2025
Yogesh Agarwal ..... Petitioner
Mr. Abhisek Kejriwal, Advocate
-versus-
1. Sogara Khatun ..... Opposite Parties
2. Executive Engineer, Public
Health Department, Cuttack
3. Commissioner, Cuttack Municipal
Corporation, Cuttack
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
ORDER
07.04.2025
Order No. (Through hybrid Mode)
02.
1. This C.M.P. has been filed with a prayer for quashing the
impugned order dated 13.02.2025 and consequently directing the
learned Executing Court to adjudicate upon the question of right,
title, interest raised by the petitioner. The prayer does not contain
the details of the order or the name of the Court, but the order has
been passed in C.M.A. No. 48 of 2024 by the learned Civil Judge
(Junior Division), 1st Court, Cuttack.
2. In Civil Suit No. 1222 of 2015 filed by one Sogara Khatun
against - 1. The Executive Engineer, Public Health Department,
Division-I, Cuttack and 2. Commissioner, Cuttack Municipal
Corporation, Cuttack, a decree of mandatory injunction has been
passed on 27.07.2023 to remove the public water post situated on the
suit schedule property i.e. Khata No. 699/474, Plot No. 355, area of
Ac.0.014 dec. situated at Cuttack Sahar Unit No. 16 Kathagada Sahi,
Tahasil-Cuttack, District-Cuttack within two months from the date
of the order and in default of the defendant no.1 and 2 to remove the
said construction of water post from the suit schedule property, the
plaintiff has been given the liberty to get the decree executed by the
process of law (Annexure-1).
3. Mr. Abhisek Kejriwal, learned counsel for the petitioner
submits that the petitioner had bought the suit land by auction sale of
the Urban Co-operative Bank Ltd., Cuttack and had been issued sale
certificate on 29.05.2012 and he had allowed the public water post to
be constructed on the property. He was unaware the judgment
passed in C.S. No. 1222 of 2015 as he was not a party in Civil Suit.
He became aware of the judgment and decree in the said civil suit in
March, 2024, when the bailiff had come for delivery of possession
pursuant to order passed in Execution Case No. 51 of 2023 by the
learned Civil Judge (Junior Division), 1st Court, Cuttack. So, he
filed an application under Order 21 Rule 101 and Rule 99 read with
Section 151 of the CPC which was registered as CMA No. 48 of
2024 (Annexure-2). The decree holder appeared suo motu in the
application and filed an objection along with documents objecting to
the maintainability of the application filed by the petitioner
(Annexure-3). The learned court below instead of deciding the
application of the petitioner as a suit as provided by Order 21 Rule
101 of the CPC, erroneously rejected the application of the petitioner
for rejection of the documents filed by the judgment holder and
posted the case for orders on 08.04.2025 on the objection of the
judgment debtor.
4. Mr. Kejriwal, learned counsel relying on the decision of this
Court in the case of Smt. Laxmipriya Bhuyan vrs. Narmadabala
Parida and Others : (1990) 70 CLT 784, submits that the
application of the petitioner under Order 21 Rule 101 and Rule 99 of
the CPC cannot be disposed of in a summary manner and has to be
disposed of as a regular suit as he cannot file another suit in respect
of the same subject-matter. He fairly submits that this decision has
not been brought to the notice of the learned Executing Court.
5. As this decision has not been brought to the notice of the
learned Executing Court, it is open to the petitioner do so as his
application filed under Order 21 Rule 99 and Rule 101 of the CPC,
is still pending before that Court.
6. With this observation, the CMP is disposed of.
7. Certified copy of this order be granted to the learned counsel
for the petitioner in course of the day.
(Savitri Ratho)
Judge
puspa
Signed by: PUSPANJALI MOHAPATRA
Designation: Personal Assistant
Reason: Authentication
Location: Orissa High Court
Date: 07-Apr-2025 19:07:55
