[Cites 1, Cited by 0]
Orissa High Court
Prachura Behera vs Akhaya Behera & Ors. ..... Opposite ... on 19 January, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1977 of 2025
Prachura Behera ..... Petitioner
Represented by Adv. -
Subhendu Kumar Nayak
-versus-
Akhaya Behera & Ors. ..... Opposite Parties
Represented by Adv. -
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
19.01.2026
Order No.
02. 1. This matter is taken up through Hybrid Arrangement (Virtual/
Physical Mode).
2. Heard learned counsel for the Petitioner. Perused the CMP
application as well as the prayer made therein.
3. By filing the present application under Article 227 of the
Constitution of India, the defendant-Petitioner has prayed for setting
aside order dated 15.09.2025 passed by the learned Civil, Judge,
Senior Division, Athagarh bearing CMA No..47 of 2025 which
arises out of C.S. No.207 of 2016.
4. Learned counsel for the defendant-Petitioner at the outset
contended that Civil Suit No. 207 of 2016 filed at the instance of the
Opposite Parties has been decreed ex-parte. He further submitted that
after a decree was passed, the plaintiff has filed an Execution case.
On being noticed in the Execution case, the defendant-Petitioner
appeared before the Executing court. However, he did not get an
opportunity to file his objection in the Execution case.
5. Learned counsel for the Petitioner further contended that while
this was the position the defendant moved an application under
Order 21 Rule 26 with a request to the learned Executing Court to
stay the execution proceeding. Such application having been rejected
vide order dated 15.09.2025 at Anenxure-4, the Petitioner has
approached this Court by filing the present application.
6. No notice has been issued to the Opposite Parties. This
application is being considered at the stage of admission by this
Court.
7. On perusal of the impugned order dated 15.09.2025 passed by
the learned executing court in execution case No.8 of 2019 which
arises out of C.S. No.207 of 2016, this Court found that the present
petitioner was a defendant in the suit. As such, there is an Opposite
Parties-judgment debtor in the execution proceeding. On perusal of
the order dated 15.09.2025, it appears that the defendant initially
appeared in the execution proceeding and filed his vakalatnama.
However, he did not file any objection till 12.09.2023. Therefore, he
was debarred from filing any show cause. Finally, he was set ex-
parte in the execution case on 13.02.2024. It appears that no steps
were taken by the defendant for setting aside the ex-parte order dated
13.02.2024. While this was the position another vakalatnama was
filed through a different counsel on 21.08.2025 without any
application for setting aside the ex-parte order dated 13.02.2024. In
the aforesaid factual backdrop, the learned trial court has held that
the Petitioner-defendant has no locus standi to file an application
under Order 21 Rule 26 as the Petitioner has already been set ex-
parte in the execution proceeding.
8. On a careful analysis of the impugned order dated 15.09.2025
at Annexure-4, this Court found that the learned executive court has
not committed any illegality. Therefore, the impugned order does not
call for any interference by this Court. However, taking into
consideration the interest of the defendant, this Court is inclined to
grant another opportunity to file an application for setting aside the
ex-parte order dated 13.02.2024 within two weeks from today. In
such eventuality, the learned executing court shall consider such
application by providing an opportunity of hearing to both sides. In
the event the trial court comes to a conclusion that the ex-parte order
dated 13.02.2024 is to be set aside, then necessary opportunity be
provided to the Petitioner to file his show cause as expeditiously as
possible and the learned trial court shall proceed further in
accordance with law. This opportunity is being granted to the
Petitioner subject to the condition that he shall cooperate with the
learned executive court and shall not take unnecessary adjournments,
failing which this order will automatically stand vacated.
9. With the aforesaid observations and directions, the present
CMP application stands disposed of.
( Aditya Kumar Mohapatra)
Judge
Rubi
