Orissa High Court
U.Annapurna And Another vs R.Venkat Rao .... Opp. Party on 21 August, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 22-Aug-2023 12:06:49
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 547 OF 2019
U.Annapurna and another .... Petitioners
Mr. Soumya Mishra, Advocate
-versus-
R.Venkat Rao .... Opp. Party
None
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 21.08.2023
8. 1. This matter is taken up through hybrid mode.
2. Order dated 29th March, 2019 (Annexure-11) passed by learned District Judge, Ganjam at Berhampur in Civil Revision Petition No.3 of 2018 is under challenge in this CMP, whereby it is held that the revision against the under Section 47 CPC is not maintainable.
3. Mr. Mishra, learned counsel for the Petitioners submits that the Petitioners being the JDrs. had filed an application under Section 47 CPC in Execution Proceeding No.3 of 2014. The said application was registered as IA No.11 of 2017. However, vide order dated 11th April, 2018 (Annexure-10), said application under Section 47 CPC was dismissed. Assailing the same, the Petitioners preferred Civil Revision No.3 of 2018 before the learned District Judge, Ganjam at Berhampur. Learned District Judge holding the revision to be not maintainable, dismissed the same. Hence, this CMP has been filed.
3.1 It is his submission that an execution case is no doubt a proceeding under CPC. As such, proviso to Section 115 CPC is applicable to the instant case. The proviso clearly stipulates that a Page 1 of 3 Signature Not Verified // 2 // Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Aug-2023 12:06:49 revision would be maintainable when the order impugned, if passed in favour of the revision Petitioner would have disposed of the entire suit or proceeding. In the instant case, if the order under Section 47 CPC would have been passed in favour of the revision Petitioners, namely, the Petitioners herein, it would have disposed of the entire execution proceeding. Thus, a revision would be maintainable. In support of his case, Mr. Mishra, learned counsel placed reliance upon a decision of this Court in the case of Sitaram and others Vs. Antaryami Mohapatra and others, reported in 96 (2003) CLT 762. In that view of the matter, he submits that the impugned order under Annexure-11 may be set aside and the matter may be remitted back to the revisional Court for fresh adjudication of the revision on merit.
4. Although the Opposite Party is represented through learned counsel, but none appears on his behalf at the time of call.
5. Considering the submission of Mr. Mishra, learned counsel for the Petitioners, this Court finds that 'proceeding' has not been defined in the CPC. However, an Execution Case is a proceeding within the meaning of proviso to Section 115 CPC. In the instant case, the application under Section 47 CPC was filed by the Petitioners, who were the JDrs. in the aforesaid Execution Case. The said application was rejected. Hence, Civil Revision No.3 of 2018 was filed. Had the petition under Section 47 CPC been allowed in favour of the Petitioner, it would have disposed of the entire Execution Proceeding. Thus, this Court is of the considered opinion that a revision would lie from rejection of an Page 2 of 3 Signature Not Verified // 3 // Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Aug-2023 12:06:49 application under Section 47 CPC. The said view is supported by the observation made in the case of Sitaram and others (supra).
6. Accordingly, this Court sets aside the impugned order under Annexure-11 and remits the matter to learned District Judge, Ganjam at Berhampur to adjudicate Civil Revision No.3 of 2018 afresh on merit giving opportunity of hearing to the parties concerned.
7. The CMP is disposed of accordingly.
Issue urgent certified copy of the order on proper application.
(K.R. Mohapatra) Judge s.s.satapathy Page 3 of 3