Dismissed¶¶15

Jyotsna Rani Barik v. Prasata Kumar Dey

Orissa HC11 Aug 2025CMP/1278/2022

Case brief

AI extract

What is this about?

Execution proceedings; expunction of Commissioner's evidence; decree-holder barred from turning around after cross-examining Civil Court Commissioner and Survey knowing Advocate Commissioner; 'blowing hot and cold'; maintainability of CMP; impugned order dated 21.11.2022 of the Court below; C.S. No. 498 of 2004; Balasore; locus standi of judgment debtor No.1 to adduce Commissioner evidence; Orissa High Court; CMP dismissed.

What did the court decide?

Having participated in the proceedings by cross-examining the Commissioner and the Survey knowing Advocate Commissioner, the decree-holder cannot subsequently be permitted to turn around and seek expunction of their evidence, as it would amount to blowing hot and cold at the same time. ¶¶13

Jyotsna Rani Barik Vs Prasata Kumar Dey — Orissa HC (2025) — LawSathi Research

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

CMP No. 1278 of 2022

¶3

Jyotsna Rani Barik `…. Petitioner Represented by Mr. B.Baug, Senior Advocate -Versus - Prasanta Kumar Dey & …. Opposite Parties Anr Represented by

¶4

CORAM: JUSTICE SASHIKANTA MISHRA

¶5

Order No. 03.

¶6

ORDER_ 11.08.2025

¶7

1. This matter is taken up through hybrid mode.

¶8

The petitioner is the decree-holder in C.S. No. 498 of 2004 in the Court of learned Civil Judge, (Junior Division), Balasore. In the execution case, a Civil Court Commissioner was deputed, who having submitted his report, was examined and cross-examined by the parties after delivery of possession. Subsequently, a Survey knowing Advocate Commissioner was also deputed. After conclusion of the evidence of the Civil Court Commissioner, the judgment-debtor No.1 examined the Survey knowing Advocate Commissioner and the decree-holder cross-examined the said Commissioner. Thereafter, an application was filed to expunge the

¶9

Page 1 of 3

¶10

evidence of both the Commissioners on several grounds. The Court below, by order dated 21.11.2022 rejected the petition. Said order is impugned in the present application.

¶11

Heard Mr. B.Baug, learned Senior counsel with Mr. M.R.Baug, learned Advocate appearing for the decreeholder/petitioner and Mr. D.P.Mohanty, learned counsel appearing for the judgment- debtor/opposite parties. 4. Mr. Baug submits that the Commissioner’s report was submitted at a belated stage and is not in terms of the decree passed. Similarly, the judgment debtor No.1 examined a Survey knowing Advocate Commissioner, whose evidence is also not in consonance with the decree. Moreover, the Commissioners did not measure the suit land from the Mustakil Chand a and other points shown in the map. As such, the report is fallacious.

¶12

Mr. D.P.Mohanty, on the other hand, questions the maintainability of the present application by submitting that the decree-holder having duly participated in the proceeding by crossexamining the Commissioner as well as the Advocate Commissioner, cannot subsequently turn around and question their reports as well as seek expunction of their evidence.

¶13

Having considered the rival submissions and on perusal of the materials on record, it is seen that the decree holder participated in the proceeding by cross-examining the Commissioner as well as the Survey knowing Advocate Commissioner. Having participated in the proceeding, the decree holder cannot subsequently be permitted turn around and seek expunction of their evidence, as it would amount to blowing hot and cold at the same time.

¶14

Page 2 of 3

¶15

This Court therefore, finds no merit in the CMP, which is dismissed. It goes without saying that it shall be open to the decree holder to question the locus standi of the judgment debtor No.1 to adduce evidence of the Commissioner as well as Advocate Commissioner at the appropriate stage.

¶16

( Sashikanta Mishra) Judge

¶17

Deepak

¶18

Signature Not Verified

¶19

Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 12-Aug-2025 14:14:46

¶20

Page 3 of 3

Jyotsna Rani Barik v. Prasata Kumar Dey

Case brief

What is this about?

What did the court decide?

Jyotsna Rani Barik v. Prasata Kumar Dey

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Jagabandhu Paramanik Vs Sripali Ghose

Lizarani Samantaray Vs Collector,Ganjam

Raghunath Rout Vs State of Orissa

Rajendra Das Vs Union of India

Saraswati Behera Vs Govt of Odisha

Saraswati Behera Vs Govt of Odisha