Jyotsna Rani Barik ` vs Prasanta Kumar Dey & .... Opposite ...
2025 Latest Caselaw 3319 Ori

Orissa High Court

Jyotsna Rani Barik ` vs Prasanta Kumar Dey & .... Opposite ... on 11 August, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 CMP No. 1278 of 2022

            Jyotsna Rani Barik          `....                    Petitioner
                                                          Represented by
                                                             Mr. B.Baug,
                                                         Senior Advocate
                                         -Versus -
            Prasanta Kumar Dey &          ....             Opposite Parties
            Anr                                           Represented by


                        CORAM:
                          JUSTICE SASHIKANTA MISHRA
                                         ORDER_
Order No.                                11.08.2025
   03.
              1.

This matter is taken up through hybrid mode.

2. The petitioner is the decree-holder in C.S. No. 498 of 2004 in the Court of learned Civil Judge, (Junior Division), Balasore. In the execution case, a Civil Court Commissioner was deputed, who having submitted his report, was examined and cross-examined by the parties after delivery of possession. Subsequently, a Survey knowing Advocate Commissioner was also deputed. After conclusion of the evidence of the Civil Court Commissioner, the judgment-debtor No.1 examined the Survey knowing Advocate Commissioner and the decree-holder cross-examined the said Commissioner. Thereafter, an application was filed to expunge the

evidence of both the Commissioners on several grounds. The Court below, by order dated 21.11.2022 rejected the petition. Said order is impugned in the present application.

3. Heard Mr. B.Baug, learned Senior counsel with Mr. M.R.Baug, learned Advocate appearing for the decree- holder/petitioner and Mr. D.P.Mohanty, learned counsel appearing for the judgment- debtor/opposite parties.

4. Mr. Baug submits that the Commissioner's report was submitted at a belated stage and is not in terms of the decree passed. Similarly, the judgment debtor No.1 examined a Survey knowing Advocate Commissioner, whose evidence is also not in consonance with the decree. Moreover, the Commissioners did not measure the suit land from the Mustakil Chand a and other points shown in the map. As such, the report is fallacious.

5. Mr. D.P.Mohanty, on the other hand, questions the maintainability of the present application by submitting that the decree-holder having duly participated in the proceeding by cross- examining the Commissioner as well as the Advocate Commissioner, cannot subsequently turn around and question their reports as well as seek expunction of their evidence.

6. Having considered the rival submissions and on perusal of the materials on record, it is seen that the decree holder participated in the proceeding by cross-examining the Commissioner as well as the Survey knowing Advocate Commissioner. Having participated in the proceeding, the decree holder cannot subsequently be permitted turn around and seek expunction of their evidence, as it would amount to blowing hot and cold at the same time.

7. This Court therefore, finds no merit in the CMP, which is dismissed. It goes without saying that it shall be open to the decree holder to question the locus standi of the judgment debtor No.1 to adduce evidence of the Commissioner as well as Advocate Commissioner at the appropriate stage.

(Sashikanta Mishra) Judge Deepak