Orissa High Court
Susanta Ghadai vs Ganesh Chandra Jena .... Opposite Party on 18 February, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1450 of 2024
Susanta Ghadai .... Petitioner
Mr. A.P. Bose, Advocate
-Versus-
Ganesh Chandra Jena .... Opposite Party
None
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
18.02.2025
Order No.
01. 1. Heard Mr. Bose, learned counsel for the petitioner.
2. No notice is issued to the opposite parties, as the matter is
disposed of at the stage of admission.
3. Instant petition is filed by the petitioner challenging the
impugned order dated 13th November, 2024 passed in connection
with Execution Case No.01 of 2018 under Annexure-1 by the
learned Civil Judge (Senior Division), Jaleswar, whereby, an
application as per Annexure-4 was dismissed.
4. Mr. Bose, learned counsel for the petitioner would submit
that during the continuance of the execution proceeding, an
application to stay the same was filed by the petitioner being the
JDR against an ex parte decree sought to be set aside in terms of the
Order 9 Rule 13 CPC vide CMA No.188 of 2023-I, however, the
same was not entertained on the ground that the status of the CMA
was not made available and mere filing of any such CMA to set
aside the ex parte judgment and decree cannot be the reason to stay
the proceeding. It is submitted that the CMA is pending before the
same court, hence, therefore, the learned court below, ought not to
have dismissed the application i.e. Annexure-4 and hence,
committed illegality in not staying such execution pending till
disposal of CMA No.188 of 2023-I.
5. A copy of the execution petition is at Annexure-2 and the
same is perused. In fact, from Annexure-3, the Court finds that the
petitioner has applied for setting aside the ex parte decree filling
CMA No.188 of 2023-I. A copy of the stay application is at
Annexure-4 and the same is also gone through. An objection was
invited from the opposite party to Annexure-4 and the same is at
Annexure-5 in connection with Execution Case No.1 of 2018.
Admittedly, the request to set the ex parte decree in terms of Order
9 Rule 13 CPC at the behest of the petitioner is pending before the
learned Court below, the fact, which is also revealed from the
impugned order i.e. Annexure-1 but for the reason stated therein,
the Court declined to stay the proceeding vis-à-vis the execution of
the decree. The Court is of the view that learned Court below was
at error to pass the impugned order under Annexure-1, when it was
well within its knowledge about the CMA to be pending filed under
Order 9 Rule 13 CPC by the petitioner against the ex parte
judgment and decree dated 29th June, 2017. In other words, the
Court is of the view that there was no justiciable reason for the
learned Court below not to stay the execution proceeding before
disposal of the CMA filed under Order 9 Rule 13 CPC, hence,
therefore, the impugned order i.e. Annexure-1 is liable to be
interfered with followed by consequential directions issued.
6. Hence, it is ordered.
7. In the result, the petition stands allowed. Consequently, the
impugned order under Annexure-1 in Execution Case No. 01 of 2018
under Annexure-1 by learned Civil Judge, Senior Division, Jaleswar
is hereby set aside. The Court further directs that there shall be stay
of proceeding in Execution Case No.1 of 2018 till disposal of the
application as at Annexure-3 filed under Order 9 Rule 13 CPC by
the petitioner, hearing and the disposal of which, shall be followed
by an order at the earliest preferably within a period of four weeks
from the date of receipt of a copy of this order.
8. In the circumstances, however, there is no order as to costs.
9. Urgent certified copy of this order be issued as per rules.
(R.K. Pattanaik)
Judge
Balaram
