Orissa High Court
Nooran Bibi @ Noorjahan Bibi vs Noorjahan Begum And Others .... Opp. ... on 20 September, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 933 of 2017
Nooran Bibi @ Noorjahan Bibi .... Petitioner
Mr. Dayananda Mohapatra, Advocate
-versus-
Noorjahan Begum and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 20.09.2021 11. 1. This matter is taken up through hybrid mode.
2. Petitioner in this CMP seeks to assail the order dated 27th July, 2017 passed by learned District Judge, Cuttack in RFA No.186 of 2016 whereby he refused to grant stay of further proceeding in Execution Case No.58 of 2016 (arising out of CS No.357 of 2008) pending before learned 1st Additional Civil Judge (Senior Division), Cuttack.
3. Mr.Mohapatra, learned counsel submits that the suit decreed with the following order :-
"The suit of the plaintiffs be and the same is decreed on contest against the defendants. The sale deed marked Ext.2 is held to be valid document and the plaintiffs are declared to having right, title, interest and possession over the B-schedule properties. The plaintiffs are held entitled for the decree of permanent injunction against the defendants restraining to disturb the peaceful possession over the B-schedule land or from making obstruction of the construction work of the plaintiffs over the B-schedule land. However, in the circumstances of this case the parties are directed to bear their own costs."
Learned Court under misconception that the decree was for declaration simplicitor has passed the impugned order.
Page 1 of 2// 2 // However, the application under Order XXXIX Rules 1 and 2 CPC is pending for consideration. The matter is now pending before the learned 1st Additional District Judge (LR) and the said Court is not functioning for which the Petitioner is not in a position to move the application under Order XXXIX Rules 1 and 2 CPC. It is his submission that if a breathing time of 15 days is given he will be in a position to move the said application.
4. Taking into consideration the submission of Mr.Mohapatra, learned counsel for the Petitioner, this Court, without expressing any opinion on the merit of the case, disposes of the CMP with a direction that in the event the Petitioner files an application before the learned executing Court in Execution Case No.58 of 2016, the same shall be adjourned for a period of fifteen days to enable the Petitioner to move the application under Order XXXIX Rules 1 and 2 CPC in RFA No.186 of 2016. And if the Court of 1st Additional District Judge (LR), Cuttack is not functioning the petitioner shall be at liberty to move the learned District Judge, Cuttack to transfer the case to any other competent Court.
5. All the Interlocutory Applications are disposed of accordingly.
Issue urgent certified copy of the order on proper application.
(K.R. Mohapatra)
s.s.satapathy Judge
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