Allowed

Chanchala Nayak v. Sibo Pr.Choudhury

Orissa HC16 Aug 2023WP(C)/28485/2013

Case brief

AI extract

What is this about?

The Court directed the Executing Court to dispose of the execution petition without waiting for the disposal of a pending Second Appeal, holding that such pendency does not stay execution absent an interim stay order.

What did the court decide?

Directed the learned Civil Judge (Senior Division), Gunupur to proceed with and dispose of Execution Petition No.06 of 2008 at an early date, provided no stay is in operation on appeal.

Chanchala Nayak Vs Sibo Pr.Choudhury — Execution and Attachment | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C). NO.28485 OF 2013

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Chanchala Nayak …. Petitioner Mr. G.N. Sahoo, Advocate

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-versus-

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Sibo Prasad Choudhury

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…. Opp. Parties

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

16.08.2023

This matter is taken up through hybrid mode.

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This writ petition has been filed for a direction to learned Civil Judge (Senior Division), Gunupur to dispose of Execution Proceeding No.06 of 2008 (arising out of Civil Suit No.01 of 2007) within a stipulated period.

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Mr. Sahoo, learned counsel for the Petitioner submits that after Civil Suit No.01 of 2007 was decreed in favour of the Plaintiff-Petitioner, she filed Execution Case No.06 of 2008. Although the Execution Petition is ready in all respect and there is no legal impediment for disposal for the same, but learned Executing Court is adjourning the matter liberally on the plea that RSA No.292 of 2010 arising out of the aforesaid suit is pending in this Court. It is his submission that no interim order for stay of execution proceeding has been passed in the aforesaid appeal. Thus, learned Executing Court without waiting for disposal of the Second Appeal should have proceeded with the Execution Petition. In view of the pendency of the Execution Proceeding, the Petitioner is deprived of enjoying the

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// 2 //

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fruit of the decree. Hence, finding no other alternative, this writ petition has been filed.

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Although notice on the Opposite party has been made sufficient, none appears on his behalf at the time of call.

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Upon hearing Mr. Sahoo, learned counsel for the Petitioner and on perusal of the order sheet of the execution proceeding, more particularly, order dated 15^th September, 2011, it appears that learned Executing Court adjourned the Execution Proceeding on a petition filed by the Opposite PartyJ.Dr. on the plea that RSA No.292 of 2010 is pending in this

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Court.

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Pendency of a Second Appeal under Section 100 CPC shall not operate as stay of the Execution Proceeding. It is submitted by Mr. Sahoo, learned counsel for the Petitioner that no interim order staying further proceeding of the Execution Petition has been passed in the aforesaid Second Appeal. In that view of the matter, learned Executing Court should not wait for disposal of RSA No.292 of 2010 to proceed with the Execution Petition.

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Accordingly, this Court directs learned Civil Judge (Senior Division), Gunupur to proceed with the Execution Petition No.06 of 2008 and see that it is disposed of at an early date provided that no order staying further proceedings of the Execution Petition is in operation. While proceeding with the Execution Petition, learned Executing Court should also keep in mind the ratio and guidelines in the case of Rahul S. Shah vrs. Jinendra Kumar Gandhi and Others, reported in 2021 6 SCC 418 .

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// 3 //

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With the aforesaid observation and direction, this writ petition is disposed of.

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

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Rojalin

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(K.R. Mohapatra) Judge

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Aug-2023 18:02:45

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Chanchala Nayak v. Sibo Pr.Choudhury

Case brief

What is this about?

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Chanchala Nayak v. Sibo Pr.Choudhury

Case brief

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