Dismissed

Uma Swain v. Chintamani Swain

Orissa HC31 Mar 2021CMP/115/2021

Case brief

AI extract

What is this about?

Petitioners approached the High Court challenging an order confirming a status quo during PMA Yoga construction. The court held that while a Section 151 petition was technically barred as being in lieu of Order XXXIX Rule 4, the petitioners have a statutory remedy under Order XLIII Rule 1(r) CPC to seek interim relief.

What did the court decide?

CMP No. 115 of 2021 disposed of with liberty to avail remedy under Order XLIII Rule 1(r) CPC.

Uma Swain Vs Chintamani Swain — Property and Title | Orissa HC (2021)

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CMP No. 115 of 2021

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31.03.2021 Heard Mr.Trilochan Dash, learned counsel for the petitioners and Mr.D.P.Mohanty, learned counsel for opposite party Nos.1 and 2. 2. Petitioners in this CMP seek to assail the order dated 19.02.2021 (Annexure-6) passed by learned Civil Judge (Senior Division), Jajpur Road in IA No.29 of 2021 arising out of CS No.220 of 2020 filed by opposite party No.1 under Section 151 CPC seeking permission of the Court to construct a house over the middle eastern part of suit plot, i.e., MS plot No.539 under MS Khata No.68 of mouza Ichhapur under ‘Pradhan Mantri Abas Yojana’. 3. It is submitted by learned counsel for the petitioners that earlier the opposite party No.1 had filed I.A. No.08 of 2021 under order XXXIX Rule 4 CPC for modification of order of status quo and to permit him to construct his residential house under Pradhan Mantri Awas Yojna , which was rejected by order dated 18.01.2021. Thus, a subsequent petition under Section 151 CPC in the garb of petition under order XXXIX Rule 4 CPC is not maintainable. Hence, he prays for setting aside the impugned order.

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Heard, learned counsel for the petitioners and perused the impugned order under Annexure-6 as well as order dated 18.01.2021 (Annexure-7) passed in I.A.No.08 of 2021. In view of the order under Annexure-7, a subsequent petition under Section 151 CPC is not maintainable for the self-same prayer. But, there is no absolute bar to entertain a prayer for modification of the order of status quo , if occasion so arises. Although a petition has been filed by opposite party No.1 under Section 151 CPC, but the same is in the nature of Order XXXIX Rule 4 CPC, as the opposite party No.1 eventually sought for modification of order of status quo order and to permit him to make construction. That being the position, the petitioners have remedy under Order XLIII Rules 1(r) CPC.

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Accordingly, the CMP is disposed of granting liberty to the petitioners to avail the statutory remedy.

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Issue urgent certified copy of the order on proper application.

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……..…………………….

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K.R. MOHAPATRA,J.

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Uma Swain v. Chintamani Swain

Case brief

What is this about?

What did the court decide?

Uma Swain v. Chintamani Swain

Case brief

What is this about?

What did the court decide?

What the court decided

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