JUDGMENT :

Akshaya Kumar Rath, J.

1. Aggrieved by and dissatisfied with the order dated 31.3.2004 passed by the learned Ad hoc Addl. District Judge, Khurda in C.S. No. 47/67 of 2003, the petitioner has filed the instant petition. By the said order, the learned trial court has sent the document, said to have been executed by the defendant for alienation of the suit land in favour of the plaintiff, to the handwriting expert for examination.

2. Opposite party as plaintiff laid a suit for specific performance of agreement in the court of learned Civil Judge (Senior Division), Khurda, which was registered as C.S. No. 47 of 2003. The same was subsequently transferred to the court of learned Ad hoc Addl. District Judge, Khurda and re-numbered as C.S. No. 47/67 of 2003. The case of the opposite party-plaintiff is that the petitioner-defendant is the owner of the suit schedule property. The defendant had taken a sum of Rs. 25,000/- from the plaintiff on 30.3.2000. Thereafter, he had taken Rs. 75,000/- on different occasions. Thus a sum of Rs. 1,00,000/- had been taken by the defendant. On 10.4.2000, the defendant expressed his inability to repay the loan and agreed to sell the suit schedule property and suggested the plaintiff to purchase the same. The plaintiff agreed to the proposal. The consideration amount was settled at Rs. 2,00,000/-. It was settled between the parties that the defendant will execute the registered sale deed after receipt of the balance consideration amount and thereafter he will deliver the possession. He executed the plain paper agreement. It is further stated that the plaintiff on several occasions offered the balance amount to the defendant and requested him to execute the sale deed, but the defendant did not execute the sale deed. On 17.3.2003 the plaintiff had sent a lawyer's notice to the defendant.

3. Pursuant to issuance of notice, the defendant has filed the written statement contending, inter alia, that the suit is hit under the provision of the Orissa Money-lenders' Act, 1939. The suit schedule land along with building is his only residential house. He has never received a sum of Rs. 1,00,000/- from the plaintiff nor executed the agreement.

4. While the matter stood thus, the plaintiff filed an application under Section 45 of the Indian Evidence Act to send the agreement said to have been executed by the defendant to the handwriting expert. The defendant objected to the same on the ground that the document is in sealed cover and has not seen the light of the day and, as such, there is no need to send the same to the handwriting expert.

5. By order dated 31.3.2004, the learned trial court came to hold that the defendant has categorically stated in the written statement that neither he had taken any loan from the plaintiff, nor executed any document to alienate the suit schedule land. Thus the execution of the document has been denied by the defendant. Under such circumstances, it is not possible on the part of the plaintiff to prove the signature appearing in the document by oral evidence. Having held so, the learned trial court allowed the prayer and directed the plaintiff to deposit a sum of Rs. 1500/- for examination of the document by an expert.

6. Heard Mr. Kar, learned counsel for the petitioner and Mr. Rath, learned counsel for the opposite party.

7. Before delving deep into the matter, it is pertinent to mention here the nature of this proceeding : Whether the instant petition is filed under Article 226 or Article 227 of the Constitution of India?

8. This is not a virgin ground in so far as the question is concerned. The same has been set at rest by the apex Court in the case of Radhey Shyam and another v. Chhabi Nath and others, (2015) 5 SCC 423. In Radhey Shyam (supra) the question arose before the apex Court, as to whether the law laid down in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 that judicial orders passed by the civil court can be examined and then corrected/reversed by the writ court