Orissa High Court
Pramod Sahoo And Others vs Sanjay Pradhan And Another .... ... on 21 February, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.133 of 2025
Pramod Sahoo and others .... Petitioners
Mr. S. Bahadur, Advocate
-Versus-
Sanjay Pradhan and another .... Opposite parties
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
21.02.2025
Order No.
01. 1. Heard learned counsel for the petitioners.
2. No notices are issued to the 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 under Annexure-1 passed in connection with
Execution Case No.01 of 2024 by learned Civil Judge, Niali, Cuttack
on the grounds stated therein.
4. It is submitted that ex parte judgment and decree of the
year 2014 was obtained as per Annexure-2, whereafter, the
Execution proceeding was levied in EC No.01 of 2024. The further
submission is that CMA was filed under Order 9 Rule 13 CPC seeking
the decree set aside but during pendency of the same, learned court
below has proceeded with the execution and whereafter, an
application under Order 21 Rule 26 CPC was not entertained
seeking stay of the proceeding. The contention of learned counsel
for the petitioners is that the petitioners are JDRs and unless, the ex
parte decree which is sought to be set aside under Order 9 Rule 13
CPC is considered and disposed of, the execution proceeding should
not be continued and hence, the impugned order vide Annexure-1
is liable to be set aside.
5. A copy of an application under Order 21 Rule 26 CPC is at
Annexure-6 and the same is perused. Admittedly, there is an ex parte
judgement dated 2nd April, 2014 is in place as at Annexure-2.
Perused the copy of the plaint at Annexure-3. The petitioners as
JDRs have moved the application through Annexure-6 seeking stay
of the execution proceeding based on the ex parte judgment and
decree but the same has not been entertained. Of course, the decree
is of the year 2014 and there has been delay. The application under
Order 21 Rule 26 CPC is filed in 2024 almost after a decade and
perhaps the same to be the reason for learned court below not to
entertain but at the same time, CMA is filed seeking the ex parte
decree for being set aside under Order 9 Rule 13 CPC. Considering
the same and the fact that CMA is already filed in the meantime, the
Court is of the view that such an application under Order 21 Rule
26 CPC should be reconsidered before execution of the decree by
learned court below. In other words, the Court is of the view that
the execution in C.S. No.45 of 2012 should be deferred, till such
time, CMA filed under Order 9 Rule 13 CPC is disposed of. To add
further, the Court is of the view that execution cannot be denied
merely for the reason that the ex parte decree is not challenged in
appeal. In fact, a defendant does have the remedy in terms of Order
9 Rule 13 CPC to seek the ex parte decree set aside and hence, on
such premise, any such execution sought to be stayed as per Order
21 Rule 26 CPC cannot be declined to be entertained, morefully
when, an application under Order 9 Rule 13 CPC is pending
consideration. With such conclusion, the Court is of the view that
learned court below should be directed to revisit the decision in so
far as Annexure-6 is concerned and to defer the execution until then.
6. Accordingly, it is ordered.
7. In the result, the CMP stands disposed of with the direction
as aforesaid. As a consequence, the impugned order under
Annexure-1 passed in connection with Execution Case No.01 of
2024 by learned Civil Judge, Niali, Cuttack is hereby set aside for a
fresh decision on the plea of the petitioners according to law and in
the light of the directions as aforesaid.
8. In the circumstances, however, there is no order as to costs.
9. Urgent copy of this order be issued as per rules.
(R.K.Pattanaik)
Judge
Rojina
Designation: Junior Stenographer
