The main legal point established is that under Odisha Amendment of Order XXI Rule 22 CPC, notice to all parties to the suit is not required for execution proceedings, and objections raised during execution must be valid and in accordance with technical procedures.

JUDGMENT

K.R. Mohapatra, J. - Heard Mr. Ramakanta Mohanty, learned Senior Advocate being assisted by Mr. Imran Khan, learned counsel for the petitioners and Mr. Prafulla Kumar Rath, learned counsel for the decree holders-opposite party Nos.1 to 3.

2. This CMP has been filed assailing the order dated 01.03.2021 (Annexure-1) passed by learned Civil Judge (Senior Division), 2nd Court, Cuttack in Execution Case No.11 of 2016 (arising out of CS No.2 of 2007).

3. Short narration of facts necessary for proper adjudication of the CMP are as follows:-

3.1 Civil Suit No.2 of 2007 was filed with a prayer for declaration that the plaintiffs along with the defendants have community interest and unity of possession over the suit land as well as for permanent and mandatory injunction. The suit was decreed in part vide judgment dated 22nd December, 2012 directing as under:-

"The suit be and the same is decreed in-part on contest against the defendants No.1 to 8 but with no cost. It is hereby declared that, the plaintiffs and defendants No.1 to 6 have community of interest and unity of possession over the suit land. The defendants No.1 and 2, their servants and agents are permanently restrained from raising any kind of construction and blocking the common passage. The defendants No.1 and 2 are directed to remove the construction made over the suit land within a period of two months failing which the same will be done by the Court and the cost will be realised from them. Further the defendants No.1 and 2 are directed to allow the plaintiffs to use the suit land as passage for approaching the main road."

4. Assailing the above judgment and decree, the defendants filed RFA No.13 of 2013 under Section 96 of CPC. The said appeal was allowed vide judgment dated 30.07.2015. Accordingly, the judgment and decree passed in the suit was set aside. Being aggrieved, the plaintiffs preferred RSA No.327 of 2015, which was allowed restoring the judgment and decree passed in the Civil Suit. Although the defendants moved the Hon'ble Supreme Court in SLP(Civil) No.11522 of 2016, but the same was dismissed. Accordingly, the plaintiffsdecree holders filed a petition for execution of the decree in CS No.2 of 2007, which was registered as Execution Case No.11 of 2016. The Execution Petition was filed against the present petitioners for removal of construction over the suit land, which is a passage. The said proceeding has a chequered career. Earlier, the plaintiffs-DHrs. had moved this Court in CMP No.1304 of 2016 against the order passed under Section 47 CPC. The said CMP was disposed of directing the Executing Court to proceed with the execution case keeping in mind the observation made by the Hon'ble Supreme Court in the case of Bhavan Vaja and others vs.- Solanki Hanuji Khodaji Mansang, (1972) AIR SC 1371. When the matter stood thus, learned Executing Court passed an order carving out 50% share of the petitioners-JDrs. in the suit property, against which the DHrs.-opposite party Nos. 1 to 3 filed CMP No.1180 of 2017, which was disposed of on 22.12.2019 with the following direction as under:-

"In such view of the matter and looking to the clear direction in C.M.P. No.1304 of 2016 read with the nature of direction involving the suit sought to be executed, this Court finds the deputation of Commissioner should confine only to demarcate the passage to be enjoyed by both the parties herein following the decree in C.S. No.2/2007. As a consequence, this Court interferes with the order at Annexure-1 which is modified to the extent that Commissioner if at sent will confine to measure and identify the common passage to be utilized by both parties. Accordingly sets aside. Commissioner shall be deputed forthwith who will submit his report within a period of one month and the execution proceeding may also be concluded within a period of one month thereafter.

The C.M.P. stands disposed of with the above interfere and direction made hereinabove."

Accordingly, learned Executing Court