Orissa High Court
Dibakar Behera & Others vs State Of Odisha & Others .... Opposite ... on 4 February, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.170 of 2025
Dibakar Behera & others .... Petitioners
Mr. Pritam Kumar Mohanty, Advocate
-Versus-
State of Odisha & others .... Opposite Parties
Mr. C.M. Singh, ASC
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
04.02.2025
Order No.
01. 1. Heard Mr. Mohanty, learned counsel for the petitioners
and Mr. Singh, learned ASC for the State.
2. No notices are issued to the private opposite parties as the
matter is disposed of at the stage of admission.
3. Instant petition is filed by the petitioners challenging the
impugned order dated 17th January, 2025 under Annexure-5 passed
in connection with Execution Proceeding No.02 of 2024 by learned
Additional Civil Judge, (Senior Division), Dhenkanal on the grounds
stated therein.
4. Mr. Mohanty, learned counsel for the petitioners submits
that opposite party No.4 instituted a suit in the year, 2006 and
managed to obtain ex parte decree dated 5th July, 2013 in C.S.
No.187 of 2006 and thereafter, the execution was levied by him
and in the meantime, the petitioners not only challenged it in RFA
No.14 of 2024 but at the same time moved an application in terms
of Order 9 Rule 13 CPC to set aside such decree but was followed
by the impugned order at Annexure-5. The submission is that the
petitioners are in possession of the land in question though recorded
in the name of the Government and while claiming so, he refers to
a copy of the RoR as at Annexure-1. The further submission is that in
spite of an application under Order 9 Rule 13 C.P.C. seeking the ex
parte decree to be set aside filed at the behest of the petitioners,
learned Court below has proceeded with the execution and passed
the impugned order dated 17th January, 2025. The contention is
that such a direction vide Annexure-5 with a writ of delivery is
likely to dispossess the petitioners from over the suit land, in respect
of which, the ex parte decree was obtained by opposite party No.4
in 2013. It is claimed that the petitioners did not have the
knowledge about disposal of the suit in C.S. No.187 of 2006 by a
judgment dated 5th July, 2013 but after having learnt about the
same, the application under Order 9 Rule 13 CPC was moved but it
has led to the passing of the impugned order under Annexure-5.
5. Recorded the submission of Mr. Singh, learned ASC for the
State
6. Perused the copy of the judgment at Annexure-2 in C.S.
No.187 of 2006 and admittedly, the same was instituted by
opposite party No.4 and was disposed of ex parte in the year, 2013.
From Annexure-4 series, the Court finds that the petitioners have
approached the learned District Judge, Dhenkanal in RFA No.14 of
2024 and the same is stated to be pending as on date. It further
revealed that the petitioners have knocked the doors of the Court
of the first instance in CMA No.1 of 2024 seeking the ex parte
decree in the suit to be set aside.
7. In fact, from the impugned order under Annexure-5, the
Court finds that learned Additional Civil Judge (Senior Division),
Dhenkanal was aware of the filing of RFA No.14 of 2024 but
declined to stay the execution in absence of any interim order and
also for the delay in filing of CMA No.1 of 2024. It is fairly admitted
by learned counsel for the petitioners that though the appeal is filed
before the Court of learned District Judge, Dhenkanal, no interim
order was obtained against the decree in C.S. No.187 of 2006 and
as such, there was no bar for the learned Court below. In view of
the above, the Court finds that in absence of any such interim order
in RFA No.14 of 2024, learned Court below could not have stayed
the execution proceeding.
8. In course of hearing, Mr. Mohanty, learned counsel for the
petitioners brought to the notice of the Court for having received a
one page of copy of the caveat purportedly filed by opposite party
No.4, however, there is no such caveat petition in record nor
anyone appears for the Caveator, hence, the Court is inclined to
dispose of the petition on merit.
9. As far as the appeal is concerned, the same is claimed to be
pending in the Court of the learned District Judge, Dhenkanal.
Considering the fact that there is an ex parte decree in the suit
starring at the petitioners and the same is under challenge in RFA
No.14 of 2024 and in the meantime, an application under Order 9
Rule 13 CPC is also filed but it has not been entertained by learned
Additional Civil Judge, (Senior Division), Dhenkanal on the ground
of delay and laches, the Court is of the view that in the interest of
justice, the petitioners should be allowed the liberty to move the
Court in appeal seeking such orders and appropriate directions vis-à-
vis the execution proceeding initiated pursuant to the decree in C.S.
No.187 of 2006 and till such time, they should be interimly
protected in the interest of justice.
10. Accordingly, it is directed.
11. In the result, the petition stands disposed of granting liberty
to the petitioners to approach the Court of learned District Judge,
Dhenkanal in RFA No.14 of 2024 for appropriate orders against the
execution proceeding and in the event, any such application is
received within a fortnight from today, it shall be entertained and
disposed of in accordance with law after proper notice to the State
and opposite party No.4. The Court further directs that till such
time, the application is filed and entertained by the learned District
Judge, Dhenkanal, there shall be status quo maintained in respect of
the suit land.
12. Urgent certified copy of this order be issued as per rules.
(R.K. Pattanaik)
Judge
Balaram
