Orissa High Court
State Of Odisha & Others vs Orient Construction Private .... Opp. ... on 10 April, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.541 of 2025
State of Odisha & others .... Petitioners
Mr.Swayambhu
Mishra, ASC
-versus-
Orient Construction Private .... Opp. Party
Limited, Sambalpur
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 10.04.2025
01.
1.
The petitioners are aggrieved by the order dated
07.03.2025 passed by the learned Civil Judge (Senior
Division), Sambalpur in Execution Case No.09 of
2014, whereby the following order has been passed:
"Advocate for the DHr and Advocate for JDr are
present and files their respective hazira. Issue writ of
attachment fixing 04.04.2025 for attachment and
07.04.2025 for SR of writ."
2. Learned counsel for the petitioners submits that
the petitioners were the defendants in Civil Suit No.62
of 2009, which was decreed in favour of the plaintiff-
opposite party vide judgment and decree dated
31.01.2014 passed by the learned Civil Judge (Senior
Division), Sambalpur in Civil Suit No.62 of 2009.
3. The petitioners filed appeal being R.F.A. No.88 of
2014 before this Court. When the R.F.A. was taken up
for hearing on 21.06.2016, the following order was
passed:
"Upon hearing the learned counsel for the
parties, this Court directs that further proceeding of
Execution Case No. 9 of 2014 pending in the Court of
learned Civil Judge (Sr. Divn.), Sambalpur shall
remain stayed until further order subject to the
appellants depositing 30% of the entire decreetal
amount with costs before the executing court within
eight weeks hence.
The Misc. Case stands accordingly disposed of."
4. Pursuant to the aforementioned order dated
21.06.2016, the petitioners deposited 30% of the
entire decreetal amount, proof of which has been
placed on record vide Annexure-6 to this petition.
Further proceeding in the Execution case No 9 of 2014
pending in the Court of learned Civil Judge (Sr. Divn.),
Sambalpur remained operative since then.
5. It appears that the learned trial Court has
proceeded with the execution petition on the basis of
the judgment of the Hon'ble Supreme Court in the
case of Asian Resurfacing of Road Agency Private
Limited and another vs. Central Bureau of
Investigation, reported in (2022) 10 Supreme Court
Cases 592, whereby the Hon'ble Supreme Court had
directed earlier that the stay of the proceeding shall be
only operative for a period of six months.
6. Learned counsel for the petitioners submits that
the trial Court is oblivious of the judgment of the
Constitution bench judgment of the Hon'ble Supreme
Court in the case of High Court Bar Association,
Allahabad vs. State of Uttar Pradesh and others,
reported in (2024) 6 Supreme Court Cases 267.
Paragraphs 19 & 20 are reproduced hereunder as the
counsel relied upon the same:
"19. Interim order of stay can come to an end:
(a) By disposal of the main case by the High Court, in
which the interim order has been passed. The disposal
can be either on merits or for default or other reasons
such as the abatement of the case; or
(b) by a judicial order vacating interim relief, passed
after hearing the contesting parties on the available
grounds, some of which we have already referred to by
way of illustration.
20. Elementary principles of natural justice, which
are well recognised in our jurisprudence, mandate that
an order of vacating interim relief or modification of the
interim relief is passed only after hearing all the affected
parties. An order of vacating interim relief passed
without hearing the beneficiary of the order is against
the basic tenets of justice. Application of mind is an
essential part of any decision-making process.
Therefore, without application of mind, an order of
interim stay cannot be vacated only on the ground of
lapse of time when the litigant is not responsible for the
delay. An interim order lawfully passed by a court after
hearing all contesting parties is not rendered illegal only
due to the long passage of time. Moreover, the directions
issued in Asian Resurfacing [Asian Resurfacing of Road
Agency (P) Ltd. v. CBI, (2018) 16 SCC 299 : (2020) 1
SCC (Cri) 686] regarding automatic vacation of interim
orders of stay passed by all High Courts are applicable,
irrespective of the merits of individual cases. If a High
Court concludes after hearing all the parties concerned
that a case was made out for the grant of stay of
proceedings of a civil or criminal case, the order of stay
cannot stand automatically set aside on expiry of the
period of six months only on the ground that the High
Court could not hear the main case. If such an approach
is adopted, it will be completely contrary to the concept
of fairness. If an interim order is automatically vacated
without any fault on the part of the litigant only because
the High Court cannot hear the main case, the maxim
"actus curiae neminem gravabit" will apply. No litigant
should be allowed to suffer due to the fault of the court.
If that happens, it is the bounden duty of the court to
rectify its mistake.
7. Regard being had to the judgment in High Court
Bar Association(Supra), I hold that the impugned
order passed by the learned trial Court is not
sustainable. Hence, the impugned order 07.03.2025
passed by the learned Civil Judge (Senior Division),
Sambalpur in Execution Case No.09 of 2014 is set
aside and the order dated 21.06.2016 passed by the
learned Coordinate Bench of this Court in R.F.A.
No.88 of 2014 shall remain operative till the disposal
of the RFA. Registry is directed to list the RFA No 88 of
2014 before assigned court for early disposal.
8. With the aforementioned observation, the CMP is
disposed of.
(S.S. Mishra)
Judge
Subhasis
Designation: Personal Assistant
Location: High Court of Orissa, Cuttack.
Date: 12-Apr-2025 15:10:17
