JUDGMENT

S.PANDA, J. - Petitioner in this application have challenged the order dated 12.11.2003 passed by learned Civil Judge (Sr. Divn.), Dhenkanal in Execution Case No. 63 of 1998 in dismissing the execution case as the same is not maintainable before him.

2. The facts leading to the present case are as follows:-

It is averred in the writ petition that the parties in the writ petition claim to be the disciples of Sri Mahima Gosain the propounder of Mahima Dharma. The Sanyasis are in two groups. One group is known as Balkaladhari and the other is Koupinidhari. There was a disputes between these two groups with regard to their right to perform seba puja in the SUNYA MANDIR where the relics of Mahima Gosain is worshiped and the right to take part in the management of the institution. Consequently two separate societies have been formed and registered. One is registered as Satya Mahima Dharma Dhama Parichalana Samiti. The said samiti is dominated by the Balkala Dharies who claim to be the true disciples of Mahima Swamy. The present petitioners represent the Samiti of Balkaladhari. The other group had been registered as Satya Alekha Mahima Dharma Koupina Dhari Samiti. The opposite parties represent the Samiti of Koupina Dharies.

3.In the year 1939-40 there was a dispute between the two groups of Sanaysi when the Koupin Dharies are said to have been forcibly encroached on a part of Sunya Mandir and raised some structures thereon. Accordingly the Balkaldhari filed Original Suit No. 62/152 of 1939-40 (HC/21/1943) before the learned District Judge of the then State of Dhenkanal for declaration of the title of the deity Mahima Gosain to the disputed site and the sheds and other structures standing thereon, for ejectment of the defendants therefrom and other structures standing thereon, for ejectment of the defendants there from and for a perpetual injunction on the defendants restraining them from constructing huts or other structures on the disputed site. The said suit was decreed on contest on 16.12.1944 in favour of the plaintiffs Sree Mahima Gosain. The defendants were also restrained from construction any hut or other structure on the Gadi compound. Judgment debtors challenging the decree preferred Civil Appeal No.1 of 1945 before the appellate Court.

4.The appellate Court by order dated 5.6.1945 dismissed the appeal however, modified the decree to the extent that the defendants will not be able to construct a separate Dhunimandap and lit up a separate akhandabati in their new place of residence in the math area and the words in the ordering portion of the judgment of the trial Court “to the site where the aforesaid sheds would be removed” was deleted by the appellate Court.

5.The Balkaldhari-decree holders issued notice to the judgment debtors Koupina Dharies to remove the structures and to comply with the direction of the decree passed by the High Court of Dhenkanal State. The Koupin Dhari replied the same negative.

6.The Balkala Dharies filed Execution Case No. 63 of 1998 before the learned Civil Judge (Sr. Divn.), Dhenkanal for execution of the decree. The prayer made in the execution application was in two folds, i.e. for removal of the offending structures from the GADI SITE and for punishing the judgment debtors for violation of the decree of the prohibitory injunction.

7.The question before the execution Court was that if the Civil Court established after merger of the Dhenkanal State was competent to execute the decree passed by the corresponding Civil Court of the State of Dhenkanla. In other words if the Civil Judge (Sr. Divin.), Dhenkanal can be treated as the Court which passed the decree for the purpose of execution within the meaning of Section 38 of the Code of Civil Procedure. The decree holders contended that after merger of the State in the province of Orissa all the powers and functions of the State Civil Court merged in the corresponding Civil Court of the province of Orissa. The decree holders further contend