Orissa High Court
Trinath Maharana vs Bhaskar Chandra Swain on 8 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 727 of 2021
Application under Article 226 and 227 of the Constitution of India.
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1. Trinath Maharana
2. Tophan Maharana
3. Gagana Maharana
4. Tilotama Maharana
5. Pravakar Maharana ..... Petitioners
-versus-
1. Bhaskar Chandra Swain
2. Dhani Maharana
3. Ganeswar Jena
4. Baikuntha Swain
5. Surendra Swain
6. Congress Swain
7. Tilottama Khatei
8. Kumudini Palai ..... Opposite Parties
For Petitioners : Mr. Sanatan Das, Advocate
For Opp. Parties : Ms. Pratyusha Naidu, Advocate
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CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
08.05.2025
Savitri Ratho, J. This application has been filed by some of the JDrs for
setting aside the order dated 08.11.2021 passed by the learned Civil
Judge (Sr. Division), Puri in Execution Case No. 10 of 2014 arising
out of C.S. No. 384 of 2005.
CASE OF THE PETITIONERS
2. One Bhaskar Chandra Swain (Opposite Party No.1) filed
C.S. No. 384 of 2005 before the Court of the Civil Judge (Sr. Div.),
Puri claiming declaration of title over Schedule-A property and
recovery of possession of the same with further declaration of the
right of easement over Schedule-B property. The present petitioners
are the co-owners of the suit properties along with the present Opp.
Party No.2- Dhani Maharana. All the defendants were set ex-parte
without putting any written statement the suit was concluded on
30.08.2009 by pronouncement of the judgment and a decree was
drawn on 31.08.2009.
The plaintiff as the D.Hr filed the Execution Case before the
trial/executing Court vide Execution No.-10 of 2014. The present
petitioners filed different petitions along with a Misc. Case U/s 47 of
the Code of Civil Procedure vide CMA No.-212/2021 (FN-906/21)
which is subjudice.
While deciding the interim petitions, the Executing Court
imposed cost of Rs.3,000/- as compensatory cost upon each of the
petitioners(J.Drs) U/s 35A of the Code of Civil Procedure with
condition precedent for further participation of the petitioners in the
Executing proceeding. Petitioners have also sought relief to set-aside
the ex-parte judgment and Decree under Order 9 Rule 13 of the CPC
vide CMA No. 252 of 2014 which is pending before the trial Court.
On 08.11.2021, the JDrs filed several petitions and some
memos seeking for permission to deposit the cost through P.C.R,
and exemption of payment of cost by Dhani Maharana and for stay
of proceeding in view of filing CMA No. 906 of 2021 under Section
47 of the C.P.C. The executing court directed for issuance of warrant
of execution while rejecting the petitions.
BACKGROUND
3. The status of the parties in the Court below have not been
indicated in the cause title of the CMP nor indicated in the petition
giving rise to some confusion as who were the defendants and who
are the JDrs . As the copy of the plaint has been filed as Annexure-1
to the CMP and copies of the orders dated 03.02.2020 and
27.10.2020 passed in the execution case have been filed by learned
counsel for the opposite party No.1 (D.Hr) along with a Memo. On a
perusal of the plaint and these orders, the background of the case can
be gathered which is as follows.
4. Opposite Party No.1- D.Hr as plaintiff had filed the C.S.
No. 384 of 2005. Kotari Maharana, (since deceased) mother of the
petitioner No.1 to 4 and wife of Petitioner No.5 was defendant no.1.
Opposite party No.2 was Defendant No.2 and the Opposite party
No.3 to 8 were the other defendants.
5. Execution case No. 10 of 2014 had been filed by Opposite
party No.1-D.Hr for execution of the decree in C.S. No. 384 of 2005.
Application under Order 9, Rule 13 C.P.C had been filed by the
J.Drs for setting aside the exparte decree and hence they had filed
applications in the execution proceedings at different points of time
for stay of the execution proceedings. These had been rejected by the
learned executing court by holding that since no suit instituted by the
J.Dr against the D.Hrs was pending, the requirements of Order 21,
Rule 29 C.P.C were not fulfilled for staying the execution
proceeding.
6. On 01.02.2020, an application had been filed by the J.Drs for
rehearing the different petitions which had been heard on 20.01.2020
as the legal representatives and successors of Dhani Maharana and
Sakuntala Maharana had not been impleaded as parties. The
application dated 01.02.2020 was rejected on03.02.2020 and later ,
on the same day order was delivered rejecting all the petitions filed
earlier by the J.Dr No.1 (b) and J.Dr No.2 as being devoid of merit.
While rejecting the petitions, it had been observed that similar
petitions filed earlier had been rejected by speaking orders on
06.05.2016, 03.08.2016, 29.08.2016 and 24.09.2016. It was also
observed that in the petition under Section 47 filed on 25.01.2019
for dropping the execution proceedings , no specific ground had
been cited and it was not in proper format as per requirement of the
GRCO (Civil) and hence devoid of merit. Holding that the
petitioners (J.Dr No.1 (b) and J.Dr No.2) were guilty of filing false
and vexatious petitions, the executing court imposed compensatory
cost of Rs 3,000/- upon each of the petitioners - J.Dr 1 (b) and J.Dr
No.2 as condition precedent for their further participation in the
execution proceeding and directed that the cost should be paid
before the next date. The case was adjourned to 11.02.2020.
7. On 27.10.2021, the D.Hr objected to the prayer for
adjournment by the J.Drs, stating that they could not participate in
the proceedings, as compensatory cost imposed on them by order
dated 03.02.2020 had not been paid. The executing court disposed of
the petition filed on 07.03.2020 by the JDrs under Order 21, Rule 26
C.P.C and the petition for adjournment filed that day as not
maintainable as the cost had not been paid. Referring to order dated
21.12.2017 issuing warrant for delivery of possession and order
dated 03.02.2020, the executing court directed the DHr to furnish
fresh requisites along with the forms for warrant of delivery of
possession within seven days. The case was adjourned to
08.11.2021.
IMPUGNED ORDER
8. On 08.11.2021, the JDrs filed several petitions and some
memos seeking for permission to deposit the cost through P.C.R,
and exemption of payment of cost by Dhani Maharana and for stay
of proceeding in view of filing CMA No. 906 of 2021 under Section
47 of the C.P.C. The executing court while rejecting the petitions,
directed for issuance of warrant of execution.
SUBMISSIONS
9. Heard Mr. Sanatan Das, learned counsel for the petitioners
and Ms. Pratyusha Naidu, learned counsel for the Opposite Parties.
10. Mr. S. Das, learned counsel for the petitioners submits that
when the petitioners were willing to deposit the cost through, PCR,
their prayer should have allowed and they should have been
permitted to participate in the proceedings. He also submits that
during pendency of the application under Section 47 of the CPC and
CMA 212 of 2021, the Executing Court could not have barred them
from participating in the proceedings and could not have issued
warrant of delivery and that the Court could have converted CMA
212 of 2021 to one under O-9, R-13 of CPC. He also submits that
the cost could not be paid as the D.Hr refused to receive the same.
11. Ms. P. Naidu, learned counsel for the Opposite Parties
submits that the petitioners were adopting dilatory tactics to delay
execution of warrant of delivery of possession and had therefore not
paid the cost to the opposite parties. This would be apparent from a
perusal of the orders dated 03.02.2020 and 27.10.2020. She further
submits that permission of the Court was not necessary for deposit
of cost. As time for payment of cost had long since expired, there
was no reason as to why the petitioners should be granted any
indulgence on extension of time to pay the same. She also submits
that vide the impugned order , the Executing Court has rightly
refused to grant permission to deposit the cost through PCR as the
J.Drs not taken any steps to pay of deposit the cost in time nor filed
any application for extension of time before expiry of the period .
RELEVANT PROVISIONS
12. Section - 35 A of the Code of Civil Procedure which
provides for payment of cost , is extracted below :
"Section 35A. Compensatory costs in respect of false or
vexatious claims or defenses (1) If any suit or other
proceedings including an execution proceedings but
excluding an appeal or a revision any party objects to the
claim of defence on the ground that the claim or defence or
any part of it is, as against the objector, false or vexatious
to the knowledge of the party by whom it has been put
forward, and if thereafter, as against the objector, such
claim or defence is disallowed, abandoned or withdrawn
in whole or in part, the Court if it so thinks fit, may, after
recording its reasons for holding such claim or defence to
be false or vexatious, make an order for the payment to the
object or by the party by whom such claim or defence has
been put forward, of cost by way of compensation.
(2) No Court shall make any such order for the payment of
an amount exceeding three thousand rupees or exceeding
the limits of it pecuniary jurisdiction, whichever amount is
less:
Provided that where the pecuniary limits of the jurisdiction
of any Court exercising the jurisdiction of a Court of Small
Causes under the Provincial Small Cause Courts Act,
1887 (9 of 1887) or under a corresponding law in force in
any part of India to which the said Act does not extend and
not being a Court constituted under such Act or law, are
less than two hundred and fifty rupees, the High Court may
empower such Court to award as costs under this section
any amount not exceeding two hundred and fifty rupees
and not exceeding those limits by more than one hundred
rupees : Provided, further, that the High Court may limit
the amount or class of Courts is empowered to award as
costs under this Section. (3) No person against whom an
order has been made under this section shall, by reason
thereof, be exempted from any criminal liability in respect
of any claim or defence made by him.
(4) The amount of any compensation awarded under this
section in respect of a false or vexatious claim or defence
shall be taken into account in any subsequent suit for
damages or compensation in respect of such claim or
defence"
JUDICIAL PRONOUNCEMENTS
13. In the case of T. Arivanandam v. T. V. Sathyapal : 1977 (4)
SCC 467, which related to eviction proceedings, the Supreme
Court referring to Section 35-A of the C.P.C has observed as
follows;
"6. The trial court in this case will remind itself of
Section 35-A CPC and take deterrent action if it is
satisfied that the litigation was inspired by vexatious
motives and altogether groundless"......
In the case of Shiv Kumar Sharma v. Santosh Kumari
2007 (8) SCC 600 , which arose out of a dispute relating to an
agreement to sell, the Supreme Court has held as follows :
"However, in exercise of our discretionary jurisdiction
under Article 142 of the Constitution of India and having
regard to the conduct of the defendant, we direct that the
cost shall be payable by the appellant in favour of the
respondent in terms of Section 35-A of the Code, besides
the costs already directed to be paid by the learned trial
Judge as also by the High Court. We direct the appellant
to pay a sum of Rs. 50,000/-by way of cost to the
respondent."
In the case of Ashok Kumar Mittal vs Ram Kumar Gupta &
Anr. : (2009) 2 SCC 659 , the Supreme Court had pointed out that
the present system of levying meagre costs in civil matters (or no
costs in some matters), was unsatisfactory and did act as a deterrent
to vexatious or luxury litigation borne out of ego or greed, or
resorted to as a `buying-time' tactic and that a more realistic
approach relating to costs may be the need of the hour. This Court
had also observed that the question whether we should adopt
suitably, the western models of awarding actual and more realistic
costs is a matter that requires to be debated and that should engage
the attention of Law Commission of India. The relevant portion is
extracted below
"7. One view has been that the provisions of Sections
35 and 35A CPC do not in any way affect the wide
discretion vested in by High Court in exercise of its inherent
power to award costs in the interests of justice in
appropriate civil cases. The more sound view however is
that though award of costs is within the discretion of the
court, it is subject to such conditions and limitations as may
be prescribed and subject to the provisions of any law for
the time being in force; and where the issue is governed and
regulated by Sections 35 and 35A of the Code, there is no
question of exercising inherent power contrary to the
specific provisions of the Code.
8. Further, the provisions of Section 35A seems to suggest
that even where a suit or litigation is vexatious, the outer
limit of exemplary costs that can be awarded in addition to
regular costs, shall not exceed Rs. 3000/-. It is also to be
noted that huge costs of the order of Rs. Fifty thousand or
Rs.One lakh, are normally awarded only in writ
proceedings and public interest litigations, and not in civil
litigation to which Sections 35 and 35A are applicable. The
principles and practices relating to levy of costs in
administrative law matters cannot be imported
mechanically in relation to civil litigation governed by the
Code.
9. The present system of levying meagre costs in civil matters
(or no costs in some matters), no doubt, is wholly
unsatisfactory and does not act as a deterrent to vexatious or
luxury litigation borne out of ego or greed, or resorted to as a
`buying-time' tactic. More realistic approach relating to costs
may be the need of the hour. Whether we should adopt suitably,
the western models of awarding actual and more realistic costs
is a matter that requires to be debated and should engage the
urgent attention of the Law Commission of India."
In Sanjeev Kumar Jain vs Raghubir Saran Charitable Trust
& Ors: (2011) 12 SCR 744 : (2012) 1 SCC 455 the cost of Rs
45,28,000/-, awarded in an appeal challenging the order vacating
temporary injunction had been challenged. While reducing the cost
imposed to Rs 3,000/-, the Supreme Court discussed the requirement
for amendment in the relevant rules so that higher cost could be
awarded. The court referred to its earlier decision in Salem Bar
Association where it had been held as follows:
" Award of Realistic Costs
18. In Salem Advocates Bar Association, this Court
suggested to the High Courts that they should examine the
Model Case Flow Management Rules and consider making
rules in terms of it, with or without modification so that a
step forward is taken to provide to the litigating public a
fair, speedy and inexpensive justice. The relevant rules
therein relating to costs are extracted below:
"Re: Trial Courts So far as awarding of costs at the time of
judgment is concerned, awarding of costs must be treated
generally as mandatory in as much as the liberal attitude
of the Courts in directing the parties to bear their own
costs had led parties to file a number of frivolous cases in
the Courts or to raise frivolous and unnecessary issues.
Costs should invariably follow the event. Where a party
succeeds ultimately on one issue or point but loses on
number of other issues or points which were unnecessarily
raised, costs must be appropriately apportioned. Special
reasons must be assigned if costs are not being awarded.
Costs should be assessed according to rules in force. If any
of the parties has unreasonably protracted the
proceedings, the Judge should consider exercising
discretion to impose exemplary costs after taking into
account the expense incurred for the purpose of attendance
on the adjourned dates.
Re: Appellate Courts Awarding of costs must be treated
generally as mandatory in as much as it is the liberal
attitude if the Courts in not awarding costs that has led to
frivolous points being raised in appeals or frivolous
appeals being filed in the courts. Costs should invariably
follow the event and reasons must be assigned by the
appellate Court for not awarding costs. If any of the
parties have unreasonably protracted the proceedings, the
Judge shall have the discretion to impose exemplary costs
after taking into account the costs that may have been
imposed at the time of adjournments."
DISCUSSION AND CONCLUSION
14. In the present case, the executing court had imposed the cost
by an earlier order as it was satisfied that the J.Drs by filing
vexatious petitions were delaying disposal of the execution
proceedings. It also appears that the petitioners had neither paid the
cost nor deposited the same before the Court.
15. The petition filed for permission to deposit the cost through
PCR was redundant and rightly rejected as was the application
praying for exemption of payment of cost by Dhani Maharana. The
petition under Section 47 having been filed after the order was
passed for payment of cost , could only have been considered if at
all , after payment / deposit of the cost .
16. There is no error in the impugned order as the compensatory
cost had earlier been imposed by a well reasoned order and the said
order has not been challenged .That apart there is no illegality or
error in the said order so as to recall it .
17. But if the J.Drs are not given one chance to deposit the cost,
they will be remediless as they cannot participate in the Execution
proceedings and will be seriously prejudiced. So the interest of both
sides has to be balanced in the interest of justice. As far as the right
of the plaintiff-D.Hr ( opposite party No. 1 ) is concerned, execution
case filed by him in the year 2014 is still pending. The cost was
awarded in the year 2021. But the J.Drs have neither deposited the
cost in the Court nor paid the cost to the Opposite Party No.1-D.Hr.
He is waiting since more than four years for receiving the cost
imposed by the learned court below and the Execution Case has
remained pending all these years at the instance of the J.Drs. In my
considered opinion, while extending the time for depositing the cost,
some cost should be imposed on the petitioners.
18. Order dated 08.11.2021 is accordingly set aside to the extent
of granting time to the Petitioner No. 1 ( J.Dr No. 1(b) ) Trinath
Maharana till 20.06.2025 to deposit the compensatory cost of Rs
3,000/- . If the amount of Rs 3,000/- is deposited by 20.06.2025,
the J.Drs shall be allowed to participate in the execution
proceedings. If the amount is not deposited by 20.06.2025, they will
not be allowed to participate in the proceedings nor will their
application filed under Section 47 C.P.C be considered. It is also
observed that this extension of time can also be availed by J.Dr. 2
Dhani Maharana - Opposite Party No.2-. The cost if deposited shall
be released in favour of the D.Hr Bhaskar Chandra Swain.
19. The CMP is accordingly allowed with cost of Rs.2,000/- to be
paid by the petitioners to the Opp. Party No.1 (J.Hr) Bhaskar
Chandra Swain.
...........................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 8th May, 2025/Subhalaxmi
Signed by: SUBHALAXMI PRIYADARSHANI
Location: Orissa High Court, Cuttack
Date: 12-May-2025 20:35:07
