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IN THE HIGH COURT OF ORISSA AT CUTTACK
K.R.MOHAPATRA
Umesh Ch. Dixit – Appellant
Versus
Bhikari Mahakud – Respondent
| Table of Content |
|---|
| 1. execution case initiation and prior court orders. (Para 2 , 3 , 4 , 5 , 6 , 7) |
| 2. liability and authority of executing court. (Para 8 , 9 , 10 , 11 , 12) |
| 3. court's obligation to consider demarcation execution. (Para 14 , 15 , 16 , 17 , 18) |
| 4. final order and future proceedings. (Para 19 , 20 , 21) |
JUDGMENT :
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. CMP No.578 of 2017 has been filed assailing the order dated 15th February, 2017 passed by learned Additional Civil Judge (Junior Division), Basudevpur in Execution Case No.4 of 2013, whereby the execution case was dropped holding that the decree for demarcation is not executable.
3. CMP No.1358 of 2017 has been filed to set aside the Commissioner’s report dated 26th March, 2016 and order dated 2nd February, 2017, whereby the Commissioner’s report was accepted.
4. Since both the CMPs arise out of Execution Case No.4 of 2013 and relates to a chain of events in accepting the Commissioner’s report as well as dropping of the execution case accepting the said Commissioner’s report, the same are taken up together for convenience. The parties are described as per their status in the execution case.
5. C.S.
The executing Court has the power under Order XXI Rule 32(5) to order necessary demolitions to enforce a decree for permanent injunction despite such powers not being explicitly stated in the origina....
The executing court has jurisdiction to enforce decrees, including injunctions, and can act against violations by judgment debtors.
The court emphasized the importance of following instructions for demarcation and the power of the court to appoint a fresh Local Commissioner. The court also highlighted the need for evidence to be ....
Rule 35 of Order 21 deals with modes of executing a decree for possession of immovable properties.
The Appellate Court's failure to consider evidence of independent title and the lack of a mandatory injunction for removal of structures rendered the decree in-executable.
Non-compliance with certain instructions regarding demarcation of boundaries, such as recording statements of parties or fixing three Pucca points, will not vitiate the demarcation as a whole.
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 exe....
The court clarified that allowing additional evidence for demarcation in boundary disputes is essential and does not constitute filling up a lacuna, reinforcing the importance of accurate boundary de....
The onus is upon the plaintiff to prove the encroachment and produce the relevant record before the Revenue Official to enable demarcation. The Court cannot create evidence in favor of a party.
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