Disposed

Regulated Market Committee,Rairangpur v. M/S. Shree Ram Consultancy,Khurda

Orissa HC1 Mar 2021CMP/36/2021

Case brief

AI extract

What is this about?

The High Court set aside the impugned order rejecting a prayer for stay of execution proceedings, noting that the underlying CMA under Section 5 of the Limitation Act was not yet decided. The case was remanded for the executing court to formally consider the condonation of delay and stay prayer.

What did the court decide?

Set aside the impugned order; the case was remanded to the executing court to consider the Section 5 petition and grant a stay if applicable later.

Regulated Market Committee,Rairangpur Vs M/S. Shree… — Execution and Attachment | Orissa HC (2021)

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C.M.P. No.36 of 2021

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01.03.2021 Heard leaned counsel for the parties.

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This CMP has been filed assailing the order dated 06.01.2021 (Annexure-4) passed by learned Civil Judge (Senior Division), Bhubaneswar in C.M.A. No.122 of 2020 (arising out of C.S. No.703 of 2018), whereby he rejected an application for stay of further proceedings in Execution Case No.29 of 2020 till disposal of the petition under Order IX Rule 13 C.P.C. (C.M.A. No.122 of 2020).

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Learned counsel for the petitioner submits that the petitioner is the JDr. in Execution Case No.29 of 2020 arising out of C.S. No.703 of 2018, which has been decreed ex-parte by learned Civil Judge (Senior Division), Bhubaneswar vide judgment dated 17.12.2019. When the petitioner-JDr. came to know about the ex-parte decree, he filed C.M.A. No.122 of 2020 along with a petition under Section 5 of the Limitation Act. Learned Civil Judge finding a prima facie case although admitted the CMA but rejected the prayer for stay of further proceeding in Execution Case No.29 of 2020 for which this CMP has been filed. In support of his submission, he relied upon the decision of this Court in the case of Dhoba Moharana –v- Smt. Lili Moharana and otehrs ; reported in 2019 (II) ILR-CUT-763 and therefore, submits that the impugned order may be set aside and further proceedings in Execution Case No.29 of 2020 may be stayed till disposal of C.M.A. 122 of 2020.

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Mr. Alam, learned counsel for the opposite party(decree holder) vehemently objected to the same and contended that before condoning the delay, C.M.A. No.122 of 2020 filed by the petitioner cannot be taken into

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consideration. As such, the order of learned Civil Judge admitting the C.M.A. is not sustainable in law. He further submits that the petitioner has a remedy before the executing court to make a prayer for stay of execution proceeding. Hence, the impugned order needs no interference.

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Taking into consideration the submissions made by learned counsel for the parties and on perusal of the record, it appears that the petition under Section 5 of the Limitation Act filed in C.M.A. No.122 of 2020 has not yet been considered by learned Civil Judge (Senior Division), Bhubaneswar. Thus, he could not have entertained an application for stay of further proceeding in Execution Case No.29 of 2020. It can only be considered after consideration of delay, if any, in filing the CMA. Thus, the impugned order under Annexure-4, being not sustainable, is set aside.

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Be that as it may, since the parties to the execution proceeding have appeared before this Court, interest of justice will be best served if the parties are directed to appear before learned executing court on a particular date and put-forth their case.

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In that view of the matter, parties to the C.M.A. are directed to appear before learned Civil Judge (Senior Division), Bhubaneswar on 17.03.2021 to receive further instruction in the matter.

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On appearance of the learned counsel for the parties, learned Civil Judge (Senior Division), Bhubaneswar shall take into consideration the petition filed under Section 5 of

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the Limitation Act in C.M.A. No.122 of 2020 giving opportunity of hearing to the parties concerned and thereafter proceed with the matter in accordance with law.

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In order to enable the parties to appear before learned Civil Judge (Senior Division), Bhubaneswar and pursue their case, interim order dated 22.01.2021 passed in I.A. No.41 of 2021 shall remain operative till 31.03.2021.

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With the aforesaid observation, this CMP is disposed of.

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Urgent certified copy of this order be granted on proper application.

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……..…………………… K.R. MOHAPATRA,J.

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Regulated Market Committee,Rairangpur v. M/S. Shree Ram Consultancy,Khurda

Case brief

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Regulated Market Committee,Rairangpur v. M/S. Shree Ram Consultancy,Khurda

Case brief

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What did the court decide?

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