[Cites 2, Cited by 0]
Orissa High Court
Md. Azimuz Zaman vs Md. Abdus Samad And Others ..... ... on 18 March, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.410 of 2026
Md. Azimuz Zaman ..... Petitioner
Represented by Adv. -
Pramod Kumar Padhee
-versus-
Md. Abdus Samad and others ..... Opposite Parties
Represented by Adv. -
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
18.03.2026
Order No.
01. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioner. Perused the CMP
application as well as the prayer made therein.
3. The only defendant in C.S. No.60 of 2011, who happens to be
the Appellant in RFA No.40 of 2023, pending in the Court of
learned District Judge, Sambalpur and also the JDR in Execution
Case No.13 of 2024, pending in the Court of learned Senior Civil
Judge, Sambalpur has approached this Court by filing the present
CMP application under Article 227 of the Constitution of India,
thereby challenging order dated 03.12.2025 passed in the above
noted RFA No.40 of 2023 by the learned District Judge, Sambalpur.
4. Learned counsel for the Petitioner at the outset contended that
the Opposite Parties as plaintiff filed a suit for enhancement of rent
and for recovery of the arrear rental dues. The aforesaid suit was
decreed. Thereafter, the defendant-Appellant preferred the present
RFA No.40 of 2023 before the learned District Judge, Sambalpur. In
the pending appeal the defendant-Appellant moved an application
for stay of the execution proceeding. Such application was dismissed
vide order dated 03.12.2025 and being aggrieved by such order the
Petitioner has approached this Court by filing the present CMP
application.
5. Learned counsel for the Petitioner at the outset contended that
the application of the Petitioner-Appellant, who happens to be the
JDR in the execution proceeding, was rejected by virtue of the
impugned order dated 03.12.2025 is a finding that the Respondent
No.1 has only appeared and the Respondent Nos.2 to 9 are yet to
appear and that without hearing the other Respondents it would not
be just and proper to pass an order staying the execution proceeding
in Execution Case No.13 of 2024.
6. Learned counsel for the Petitioner at this juncture, referring to
the provisions contained in Order 41 Rule 1 (3) of the CPC,
contended before this Court that such provision clearly confers a
power on the Appellate Court to grant stay of execution of the
decree for payment of money. He further contended that while
passing the impugned order dated 03.13.2025 at Annexure-6, the
learned Appellate Court has not taken note of the aforesaid
provisions contained in Order 41 of the CPC. He further contended
that in the impugned order dated 03.12.2025 the prayer for stay of
the further proceeding in the execution case has been deferred to be
considered at the time of final hearing of the appeal which is
absolutely illegal. In the said context, he further submitted the in the
event the execution proceeding is allowed to continue, then the
pending appeal would become infructuous.
7. On a careful consideration of the submission made by the
learned counsel for the Petitioner and on a close scrutiny of the
impugned order dated 03.12.2025, this Court observes that the
prayer of the Petitioner for stay of the execution proceeding, which
was filed along with the appeal memo, has been disposed of vide
impugned order dated 03.12.2025 by the learned District Judge,
Sambalpur. The application filed by the Appellant along with his
appeal memo for stay of the execution proceeding is required to be
considered in terms of the provision contained in Order 41 Rule 1(3)
of CPC. The Order 41 Rule 1(3) of CPC is very specific with regard
to deposit of money as directed that the trial Court in its decree
subject to such condition the power has been conferred upon the
Appellate Court to grant stay execution of the decree. This Court
further observes that non-compliance of the requirement under Order
41 Rule 1(3) of CPC only disentitles the Appellant to get an order of
stay of execution of the decree. Learned counsel for the Petitioner at
this juncture contended that the Appellant-JDR is ready and willing
to abide by the conditions as prescribed in Order 41 Rule 1(3) of
CPC.
8. In view of the aforesaid position, this Court is of the view that
deferring the present application for stay of the execution proceeding
for consideration at the time of hearing of the appeal causes serious
prejudice to the Appellant. Accordingly, the impugned order dated
03.12.2025 is hereby set aside. Further, the matter is remanded back
to the District Judge, Sambalpur to consider the application afresh
subject to the provisions contained in Order 41 Rule 1(3) of CPC.
Since this order has been passed in the absence of the Opposite
Parties, liberty is granted to the Opposite Parties to seek for
modification or variation of this order in the event it is found that the
Petitioner has suppressed any material fact or misled this Court in
any manner whatsoever.
9. With the aforesaid observation/direction, the CMP application
stands disposed of.
( Aditya Kumar Mohapatra )
Judge
S.K. Rout
Location: High Court of Orissa, Cuttack
Date: 23-Mar-2026 11:07:45
