Dismissed

Subash Chandra Tarenia v. Pradip Kumar Tarenia

Orissa HC13 Sept 2023CMP/459/2019

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed a common presentation petition seeking stay of execution proceedings. The court held that filing a subsequent suit after withdrawing a revisional appeal without seeking liberty does not justify staying execution, especially when the original decree was passed on contest.

What did the court decide?

Dismissed the Petitioner's CMP finding the impugned order devoid of merit and held no infirmity thereof.

Subash Chandra Tarenia Vs Pradip Kumar Tarenia — Property and Title | Orissa HC (2023)

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Sep-2023 18:05:38

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 459 OF 2019

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Subash Chandra Tarenia

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…. Petitioner Mr. Budhiram Das, Advocate

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-versus-

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…. Pradip Kumar Tarenia and others Opp. Parties Mr. Nityabrata Behuria, Advocate (For Opp. Party No.1)

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

13.09.2023

This matter is taken up through hybrid mode.

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The Petitioner in this CMP seeks to assail the order dated 2^nd March, 2019 (Annexure-11) passed by learned Civil Judge (Junior Division), Jagatsinghpur in Execution Case No.325 of 2014, whereby an application filed by the Petitioner for stay of execution proceeding till disposal of C.S. No.183 of 2017 pending in the Court of learned Civil Judge (Senior Division), Jagatsinghpur, has been rejected.

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Mr. Das, learned counsel for the Petitioner submits that C.S. No.111 of 2013 was filed by the Plaintiff-Opposite Party No.1, Pradip Kumar Tarenia for permanent injunction. The Petitioner was Defendant No.4 in the said suit. Although it is stated that the suit was decreed on contest, but the Defendant No.4-Petitioner did not file his written statement. However, the suit was decreed vide judgment dated 22^nd February, 2017. Assailing the same, the Petitioner along with others preferred R.F.A. No.1 of 2016 before learned District Judge,

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Sep-2023 18:05:38

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Jagatsinghpur, which was withdrawn on 10^th April, 2018. Subsequently, the Petitioner filed C.S. No.183 of 2017 assailing the judgment and decree passed in C.S. No.111 of 2013, which is pending for consideration. In the meantime, the Opposite Party No.1 filed Execution Case No.325 of 2014. The Petitioner-J.Dr on his appearance filed an application to stay further proceeding of execution case till disposal of C.S. No.183 of 2017. The said application was rejected. Hence, this CMP has been filed.

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It is submitted by Mr. Das, learned counsel for the Petitioner that since C.S. No.183 of 2017 relates to a portion of the suit property, interest of justice will be best served, if further proceedings of the execution case is stayed till disposal of the said suit, failing which there is every likelihood that the Petitioner may be evicted from the suit property. He, however, submits that a direction for early disposal of C.S. No.183 of 2017 will meet the ends of justice and till then, further proceedings of the execution case should remain stayed.

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Mr. Behuria, learned counsel for Opposite Party No.1 submits that C.S. No.111 of 2013 was never disposed of ex parte . The decree was passed on contest restraining the Defendant No.4 from entering upon the suit property. After the decree was passed, Defendant No.4 forcefully entered into possession over the suit property. Hence, Execution Case No.325 of 2014 was filed. Assailing the judgment and decree passed in C.S. No.111 of 2013, the Defendant No.4-Petitioner along with others filed R.F.A. No.1 of 2016 before learned District Judge, Jagatsinghpur. The said appeal was withdrawn

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Sep-2023 18:05:38

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vide order dated 10^th April, 2018 without seeking any liberty to file a subsequent suit. Further C.S. No.183 of 2017 is only filed to protract the litigation and to prevent the Opposite Party No.1 from enjoying the fruit of the decree. He, therefore, prays for dismissal of the CMP.

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Considering the rival contentions of the parties and on perusal of the record, it appears that C.S. No.111 of 2013 was decreed on contest. Assailing the said judgment and decree, the Defendant No.4-Petitioner along with others preferred R.F.A. No.1 of 2016, which was withdrawn on 10^th April, 2018 without seeking any liberty. Before that Defendant No.4-Petitioner had filed C.S. No.183 of 2017. Although it is submitted by Mr. Das, learned counsel for the Petitioner that further proceeding of the execution case should be stayed during pendency of C.S. No.183 of 2017, but he could not make out any case in support of his submission. When a decree in C.S. No.111 of 2013 is passed on contest and the said decree is put to execution alleging forcible entry of Defendant No.4-Petitioner to the suit property, mere filing of a subsequent suit in respect of a portion of the land that too after withdrawal of R.F.A. No.1 of 2016 without seeking any liberty, should not be a bottle neck to proceed with the execution case. It further appears that the appeal preferred by the Petitioner along with others against the judgment and decree passed in C.S. No.111 of 2013 was withdrawn without seeking any liberty. As such, the Opposite Party No.1-D.Hr has every right to get the decree executed.

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Sep-2023 18:05:38

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In view of the above, I don’t find any infirmity in the impugned order under Annexure-11 and hence, the CMP being devoid of any merit stands dismissed.

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Interim order dated 16^th May, 2019 passed in I.A. No.501 of 2019 stands vacated.

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

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(K.R. Mohapatra)

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Judge

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Page 4 of 4

Subash Chandra Tarenia v. Pradip Kumar Tarenia

Case brief

What is this about?

What did the court decide?

Subash Chandra Tarenia v. Pradip Kumar Tarenia

Case brief

What is this about?

What did the court decide?

What the court decided

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