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Md. Azimuz Zaman v. Md. Abdus Samad

Orissa HC18 Mar 2026CMP/410/2026

Case brief

AI extract

What is this about?

Article 227; Order 41 Rule 1(3) CPC; stay of execution of money decree; stay application filed with appeal memo; deferral of stay prayer to final hearing set aside; remand to District Judge Sambalpur; RFA No.40 of 2023; Execution Case No.13 of 2024; C.S. No.60 of 2011; enhancement of rent; arrear rental dues; JDR; Md. Azimuz Zaman v. Md. Abdus Samad; liberty to Opposite Parties to seek modification.

What did the court decide?

Impugned order dated 03.12.2025 set aside; matter remanded to the District Judge, Sambalpur for fresh consideration of the application for stay of execution subject to Order 41 Rule 1(3) CPC; liberty granted to the Opposite Parties to seek modification or variation of the order if the Petitioner is found to have suppressed material facts or misled the Court. ¶28

Md. Azimuz Zaman Vs Md. Abdus Samad — Writ and Judicial Review | Orissa HC (2026)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the learned District Judge, Sambalpur could defer consideration of the appellant's application for stay of the execution proceeding to the time of final hearing of the appeal, instead of deciding it in terms of Order 41 Rule 1(3) CPC.

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Court's answer

An application filed by the appellant along with the appeal memo for stay of execution of the decree is required to be considered in terms of Order 41 Rule 1(3) CPC.

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Ratio / Principle

Non-compliance with the requirement of Order 41 Rule 1(3) CPC only disentitles the appellant from getting an order of stay of execution of the decree.

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Key takeaways

Deferring the application for stay of the execution proceeding for consideration at the time of hearing of the appeal causes serious prejudice to the appellant.ratio¶26
The impugned order dated 03.12.2025 is set aside and the matter is remanded to the District Judge, Sambalpur to consider the stay application afresh, subject to the provisions of Order 41 Rule 1(3) CPC.ratio¶28

Detailed headnote1 paragraphs

CMP No.410 of 2026 (High Court of Orissa, Cuttack) under Article 227 of the Constitution of India — challenge to order dated 03.12.2025 passed by the learned District Judge, Sambalpur in RFA No.40 of 2023, by which the petitioner's application (filed along with the appeal memo) for stay of Execution Case No.13 of 2024 — arising out of a decreed suit (C.S. No.60 of 2011) for enhancement of rent and recovery of arrear rental dues — was disposed of by deferring the prayer for stay to the time of final hearing of the appeal. Held: an application for stay of execution filed along with the appeal memo is required to be considered in terms of Order 41 Rule 1(3) CPC, and non-compliance with that provision only disentitles the appellant from obtaining stay of execution of the decree; deferring the application for consideration at the time of hearing of the appeal causes serious prejudice to the appellant. Impugned order set aside; matter remanded to the District Judge, Sambalpur for fresh consideration of the application subject to Order 41 Rule 1(3) CPC, with liberty to the Opposite Parties to seek modification or variation if the Petitioner is found to have suppressed material facts or misled the Court.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No.410 of 2026

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Md. Azimuz Zaman

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.....

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Petitioner

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Represented by Adv. - Pramod Kumar Padhee

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-versus-

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Md. Abdus Samad and others

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..... Opposite Parties Represented by Adv. -

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CORAM:

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THE HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA

ORDER

18.03.2026

Order No.

This matter is taken up through Hybrid mode.

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Heard learned counsel for the Petitioner. Perused the CMP application as well as the prayer made therein.

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The only defendant in C.S. No.60 of 2011, who happens to be the Appellant in RFA No.40 of 2023, pending in the Court of learned District Judge, Sambalpur and also the JDR in Execution Case No.13 of 2024, pending in the Court of learned Senior Civil Judge, Sambalpur has approached this Court by filing the present CMP application under Article 227 of the Constitution of India, thereby challenging order dated 03.12.2025 passed in the above noted RFA No.40 of 2023 by the learned District Judge, Sambalpur.

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Page 1 of 4.

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Learned counsel for the Petitioner at the outset contended that the Opposite Parties as plaintiff filed a suit for enhancement of rent and for recovery of the arrear rental dues. The aforesaid suit was decreed. Thereafter, the defendant-Appellant preferred the present RFA No.40 of 2023 before the learned District Judge, Sambalpur. In the pending appeal the defendant-Appellant moved an application for stay of the execution proceeding. Such application was dismissed vide order dated 03.12.2025 and being aggrieved by such order the Petitioner has approached this Court by filing the present CMP application.

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Learned counsel for the Petitioner at the outset contended that the application of the Petitioner-Appellant, who happens to be the JDR in the execution proceeding, was rejected by virtue of the impugned order dated 03.12.2025 is a finding that the Respondent No.1 has only appeared and the Respondent Nos.2 to 9 are yet to appear and that without hearing the other Respondents it would not be just and proper to pass an order staying the execution proceeding in Execution Case No.13 of 2024.

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Learned counsel for the Petitioner at this juncture, referring to the provisions contained in Order 41 Rule 1 (3) of the CPC, contended before this Court that such provision clearly confers a power on the Appellate Court to grant stay of execution of the decree for payment of money. He further contended that while passing the impugned order dated 03.13.2025 at Annexure-6, the learned Appellate Court has not taken note of the aforesaid provisions contained in Order 41 of the CPC. He further contended that in the impugned order dated 03.12.2025 the prayer for stay of

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Page 2 of 4.

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the further proceeding in the execution case has been deferred to be considered at the time of final hearing of the appeal which is absolutely illegal. In the said context, he further submitted the in the event the execution proceeding is allowed to continue, then the pending appeal would become infructuous.

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On a careful consideration of the submission made by the learned counsel for the Petitioner and on a close scrutiny of the impugned order dated 03.12.2025, this Court observes that the prayer of the Petitioner for stay of the execution proceeding, which was filed along with the appeal memo, has been disposed of vide impugned order dated 03.12.2025 by the learned District Judge, Sambalpur. The application filed by the Appellant along with his appeal memo for stay of the execution proceeding is required to be considered in terms of the provision contained in Order 41 Rule 1(3) of CPC. The Order 41 Rule 1(3) of CPC is very specific with regard to deposit of money as directed that the trial Court in its decree subject to such condition the power has been conferred upon the Appellate Court to grant stay execution of the decree. This Court further observes that non-compliance of the requirement under Order 41 Rule 1(3) of CPC only disentitles the Appellant to get an order of stay of execution of the decree. Learned counsel for the Petitioner at this juncture contended that the Appellant-JDR is ready and willing to abide by the conditions as prescribed in Order 41 Rule 1(3) of CPC.

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In view of the aforesaid position, this Court is of the view that deferring the present application for stay of the execution proceeding for consideration at the time of hearing of the appeal causes serious

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Page 3 of 4.

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prejudice to the Appellant. Accordingly, the impugned order dated 03.12.2025 is hereby set aside. Further, the matter is remanded back to the District Judge, Sambalpur to consider the application afresh subject to the provisions contained in Order 41 Rule 1(3) of CPC. Since this order has been passed in the absence of the Opposite Parties, liberty is granted to the Opposite Parties to seek for modification or variation of this order in the event it is found that the Petitioner has suppressed any material fact or misled this Court in any manner whatsoever.

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