Prasanna Upadhyaya @ Prasanna Kumar Upadhyaya Vs Harekrushna Upadhyaya

The father of the Petitioner, who was the defendant in C.S. No.32 of 2009 which was earlier disposed of by the learned Civil Judge, Junior Division, Pipili and who happens to be the Petitioner in R.F.A. No.66 of 2013 pending in the Court of 2^nd learned Additional District Judge, Puri, has approached this Court thereby challenging order dated 09.03.2026 and 16.03.2026 passed in Execution Case No.01 of 2017 by the learned Civil Judge, Junior Division, Pipili.

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Learned counsel for the Petitioner, at the outset, contended

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that the father of the Petitioner was a defendant in C.S. No.32 of 2009 filed by the Opposite Party-plaintiff. He further contended that the suit was decreed on contest. Thereafter, the father of the Petitioner who was the defendant preferred an appeal before the learned 2^nd learned Additional District Judge, Puri, which has been registered as R.F.A. No.66 of 2013. He further contended that during the pendency of the first appeal the father of the defendant-Petitioner died. As such, the appeal was dismissed due to non-prosecution. When the Petitioner came to learn about the fate of the abovenoted appeal they have filed an application for restoration of the first appeal. In the meanwhile, the Opposite Party-Plaintiff has filed Execution Case No.01/2017 wherein the learned Executing Court vide order dated 09.03.2026 and 16.03.2026 has been pleased to issue warrant to the bailiff to deliver possession of the suit scheduled land to the plaintiff. Being aggrieved by such order of the Executing Court at Annexure-3 the Petitioner has approached this Court by filing the present CMP application.

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On a careful consideration of the submissions made by the learned counsel for the Petitioner, and upon a close scrutiny of the impugned orders at Annexure-3 passed by the learned Executing Court in Execution Case No.01/2017, this Court is of the view that although the father of the Petitioner, who was originally the defendant in the suit preferred an appeal, however, such appeal was dismissed due to non-prosecution after the death of the father of the Petitioner, as stated by the learned counsel for the Petitioner. Although, he has filed an application

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for restoration of the first appeal the same has not been taken up by the learned 1^st Appellate Court. In the meantime, the learned Executing Court has issued warrant to the bailiff for delivery of the possession.

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Taking into consideration the aforesaid development, this Court deems it proper to dispose of the application by directing the 1^st Appellate Court to take up the application filed by the Petitioner, who happens to be the legal heir of the deceaseddefendant and the Appellant before the 1^st Appellate Court and consider and dispose of the same within a period of six weeks from the date of communication of a copy of today’s order by the Petitioner. Further, this Court grants liberty to the Petitioner to move an interim application before the learned 1^st Appellate Court with regard to the stay of the execution proceeding pending before the learned Executing Court. In the event any such application is filed before the 1^st Appellate Court, the same shall be considered and disposed of as expeditiously as possible providing after an opportunity of the hearing to both sides.

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