In the case of Prasanta Kumar Jena Vrs. Choudhury Purna Ch. Das Adhikari, 99 (2005) CLT 720, t
he learned Single Judge of this Court held that an application under Order 26 Rule 9 C.P.C. ca
n be considered only after closure of the evidence when the court finds difficult to pass an e
ffective decree on the existing evidence. Relying on the said decision, learned Single Judge o
f this Court set aside the order of appointment of Survey Knowing Commissioner for measurement
and demarcation of the land passed by the learned trial court. The same was challenged before
this Court in the case of Ram Prasad Mishra Vrs. Dinabandhu Patri and another. The Bench spea
king through Mr.V.Gopala Gowda, C.J.(as he then was) held that the learned Single Judge has in
terfered with the order passed by the learned trial court in appointing the Survey Knowing Com
missioner ignoring the decision of this Court in the case of Mahendranath Parida Vrs. Purnanan
da Pardia and others, AIR 1988 ORISSA 248. Thus, the decision in the case of Prasanta Kumar Je
na (supra) has been impliedly overruled by the Division Bench of this Court.
