Section 151 CPC cannot be invoked to alter a contested status quo order without proper challenge or application under the specific provisions of the Code.

JUDGMENT :

K.R. MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. The Petitioner in this CMP seeks to assail the order dated 5^th July, 2023 (Annexure-1) passed by learned Civil Judge (Senior Division), Jajpur in I.A. No.220 of 2023 (arising out of C.S. No.385 of 2022), whereby an application filed by the Defendant No.1-Opposite Party No.1 under Section 151 CPC to complete construction of the house over Plot Nos.276 and 302, has been allowed.

3. Ms. Mishra, learned counsel submits that the Plaintiff-Petitioner has filed the suit for partition. Since Defendant No.1 proceeded with the construction of the suit house, an application under Order XXXIX Rules 1 and 2 CPC in I.A. No.161 of 2023 was filed to restrain the Defendant No.1 from changing the nature and character of the suit land and from making new construction over the suit properties till disposal of the suit. The Defendant No.1 contested the petition. Taking into consideration the rival cases of both the parties, learned trial Court vide order dated 20^th May, 2023 (Annexure-5) directed them to maintain status quo over the suit property till disposal of the suit. The said order has not yet been challenged or varied. When the matter stood thus, an application under Section 151 in I.A. No.161 of 2023 was filed by the Defendant No.1 to permit him to complete the construction of the house over Plot Nos.276 and 302. The said application has been allowed vide order under Annexure-1. Hence, this CMP has been filed.

4. It is submitted by Ms. Mishra, learned counsel for the Petitioner that the Opposite Party No.1 never challenged the order of status quo. He also did not avail the remedy under Order XXXIX Rule 4 CPC for variance of the order of status quo, if there was any hardship to him. Thus, entertaining an application under Section 151 (I.A. No. 220 of 2023), would amount to sitting over the order of status quo passed under Order XXXIX Rules 1 and 2 , which is not permissible in eye of law. Further when specific provision for variance of the order under Annexure-5 is available in , an application under will not be maintainable. It is further submitted that Opposite Party No.1 has no locus standi to maintain such application, as the property in question was purchased in the name of his son, namely, Gyanendra Mahala, who is not a party to the suit. A detailed objection was filed by the petitioner to the petition under . But, learned trial Court without taking note of the objection raised, passed the impugned order under Annexure-1. Hence, this CMP has been filed assailing the said order.

5. Mr. Mohanty, learned counsel for the Defendant No.1- Opposite Party No.1 submits that the property in question was purchased by the Petitioner in the name of his son. By the time order of status quo dated 20^th May, 2023 was passed, construction of the residential house was made up to lintel level. The Opposite Party No.1 has purchased building materials like cement and rod etc. investing a huge amount. Unless, he is permitted to complete the construction by submitting an undertaking as directed by learned trial Court, he will suffer huge loss. It is further contended that an application under Section 151 CPC is maintainable seeking permission of the Court to complete the construction. It is his submission that the Opposite Party No.1 will not claim any equity over the construction made and will demolish the same at his own cost, if the land over which the construction is made would be allotted to the Plaintiff-Petitioner. Thus, the Petitioner is not going to be prejudiced in any manner, if the Opposite Party No.1 completes the construction. Non-completion of th