Hemalata Patra Vs Saraswati Patra

Signature Not Verified

Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Jan-2025 11:38:23

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 383 OF 2024

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Hemalata Patra and another

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…. Petitioners

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Mr. Samay Kumar Ray, Advocate on behalf of Mr. S.S.K. Nayak, Advocate

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-versus-

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Saraswati Patra and others

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…. Opp. Parties

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

15.01.2025

This matter is taken up through hybrid mode.

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Order dated 16^th December, 2023 (Annexure-5) passed in Execution Case No.04 of 2018 is under challenge in this CMP, whereby learned Civil Judge (Senior Division), Salipur allowed an application for amendment of the execution petition filed by the Plaintiffs-D.Hrs (Opposite Parties herein).

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Mr. Ray, learned counsel being authorized by Mr. Nayak, learned counsel for the Petitioners submits that the decree passed in T.S. No.148 of 1996 by learned Civil Judge (Senior Division), 2^nd Court, Cuttack is put to execution by the Opposite Parties in Execution Case No.04 of 2018. During pendency of the execution case, an application for amendment of the execution petition has been filed after lapse of twenty years to substitute description of the land mentioned in the schedule of the execution petition in view of publication of the final ROR. Without considering the fact that the execution case itself is

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Jan-2025 11:38:23

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barred by limitation and Revision Case Nos.24 & 25 of 2019 assailing the correctness of the final ROR published by the Consolidation Authority are pending before the Commissioner of Consolidation under Section 36 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for brevity ‘the Act’), learned executing Court allowed the petition for amendment. Hence, this CMP has been filed.

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It is his submission that when the matter is sub-judice before a competent Court of law, learned executing Court should have waited for final adjudication of the revision petitions, as aforesaid, to proceed with the execution case. Without waiting for the same, the impugned order has been passed. Hence, the impugned order under Annexure-5 is not sustainable and is liable to be set aside. 5. Considering the submission made by learned counsel for the Petitioners and on perusal of the case record, it is apparent that judgment and decree in T.S. No.148 of 1996 passed in favour of the Petitioners was in respect of Khata No.244, Plot No.179 to an extent of Ac.0.55 decimals, Plot No.171 to an extent of Ac,0.55 decimals out of Ac.0.66 decimals in total Ac.0.110 decimals which corresponds to Consolidation LR Khata No.64, Plot No.179 to an extent of Ac.0.55 decimals and Plot No.171 to an extent of Ac.0.66 decimals which corresponds to Khata No.385, Plot No.672 to an extent of Ac.0.011 decimals, Khata No.353, Plot No.671 to an extent of Ac.0.055 decimals, Khata No.400, Plot No.667 to an extent of Ac. 0.55 decimals, which further corresponds to settlement Khata No.244, Plot

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Jan-2025 11:38:23

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Nos.179 and 171. Hence, the amendment sought for was warranted.

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Pendency of the revision petitions under Section 36 of the Act shall not be a bar for proceeding with the execution case when final ROR under Section 22 of the Act has already been published in favour of the Petitioners. It further appears that no objection with regard to maintainability of the execution case has been raised by filing a separate petition by the J.DrsPetitioners. Although Order VI Rule 17 CPC has no application to an execution case, but learned executing Court has general power under Section 153 CPC to amend a petition in an execution proceeding. Thus, learned executing Court has the power to amend the schedule of the petition of execution case. As such, I find no infirmity in the impugned order under Annexure-5.

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Hence, this CMP being devoid of any merit stands dismissed.

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

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ms

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(K.R. Mohapatra) Judge

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Hemalata Patra v. Saraswati Patra

Case brief

What is this about?

What did the court decide?

Hemalata Patra v. Saraswati Patra

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Procedural history

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Coram

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