JUDGMENT :

This application under Article 227 of the Constitution has been filed seeking quashment of an order dated 18.01.2016 passed by the learned Civil Judge (Senior Division), Keonjhar in C.M.A. No. 05 of 2005 arising out of Execution Case No. 22 of 1994.

2. The lis in hand owes its initiation to the mid of the year 1948 and is by now just short of a year to be septuagenarian. By the order, which is impugned in this application, the final decree passed in T.S. No. 29 of 1948 about thirty years back i.e. on 04.02.1986 upon acceptance of the report of the Civil Court Commissioner followed by its sealing and signing on 06.08.1994 has been declared as nullity giving liberty to the petitioners of above noted CMA who are parties to the suit to initiate final decree proceeding afresh in respect of all the landed properties involved in the said suit which had been preliminarily decreed in terms of the compromise on 07.10.1980, with the compromise petition forming part of the preliminary decree. It may be stated here that consequential to the above order, the Executing Court has dropped the Execution Case by order dated 27.01.2016 with further direction that the possession of the property if delivered during pendency of the Execution Case in favour of either parties or outsiders on the basis of their claim shall remain intact till disposal of the final decree proceeding in the suit and until further round of the Execution proceeding.

3. After passing of the final decree upon acceptance of the report of the Civil Court Commissioner on 24.06.1985 followed by its engrossment over the stamp paper as well as its sealing and signing, the said decree was put to Execution by filing the Execution Case No. 22 of 1994. In the said Execution proceeding first an application came to be filed under section 47 of the Code of Civil Procedure (in short hereinafter called as ‘the Code’) which was numbered as M.J.C. No. 67 of 1995, questioning the executability of the said final decree on the ground that it is nullity, being passed against a party who was dead by then without bringing his legal representatives i.e. of Ganeswar (plaintiff no. 3) on record. Interestingly, the legal heirs of Ganeswar were parties in that CMA as also in the Execution proceeding. The petition was rejected by order dated 04.08.1998. Thereafter another petition under section 47 of the Code has been filed in the year 2005; the final order passed therein is now the subject matter. Although, it has been stated therein that those petitioners were not parties to the final decree and thus had no occasion to raise objection to the final decree and their predecessors-in-interest i.e. Ghanashyam @ Ganeswar Mohanta, the plaintiff no. 3 had not been noticed, the main thrust of the objection of the petitioners therein appears to be founded upon their apprehension of dispossession from the house constructed by them over the land under Plot No. 684 as also their dispossession from the property under their possession in case of Execution of the final decree passed in terms of the report of the Civil Court Commissioner. The relevant paras of the said petition as also the prayers are the followings:-

“xxx xxx xxx xxx xxx

3. That, the present petitioners were not parties to final decree for which there is no occasion for them to raise objection in final decree. They or their ancestors Ghanashyam @ Ganeswar Mahanta has been not served any notice.

4. That, in the preliminary decree the compromise petition which forms part and parcel of the decree, speaks that the parties will continue to possess the different areas described in plaint schedule, where as in final decree and suit land in possession of the petitioners all plots nos. 640, 642, 684, 629, 630, 532, 533, 491, 395, 755, 756 and 762 are not allotted to them. The petitioners are residing in the house constructed by them over the plot No. 684, have been proposed to hand over to opposite party, as per report of Civil Court Commissioner.

5. That,