The court affirmed the maintainability of a partition suit despite existing decrees, emphasizing that prior status quo orders should not have been disturbed and clarified the principles of the doctrine of merger.

ORDER :

R.K. PATTANAIK, J.

1. Instant petition is filed by opposite party No.2 seeking recall of the Court’s order dated 13^th March, 2025 in W.P.(C) No.6232 of 2025 and to modify the same keeping in view of the final decree passed in C.S. No.7187 of 2014 vide Annexure-F and the orders therein as at Annexures-A to E and to issue necessary directions in that regard as deemed just and proper in the facts and circumstances of the case.

2. The petitioner filed FAO No.129 of 2023 disposed of by the learned 3^rd Additional District Judge, Bhubaneswar vide Annexure-6, whereby, an order of status quo in I.A. No.558 of 2007 arising out of C.S. No.713 of 2007 made absolute by the learned Civil Judge, Senior Division (LR<V), Bhubaneswar as per Annexure-5 was set aside. Being aggrieved of, the petitioner filed the writ petition and by order dated 13^th March, 2025 therein while disposing of, restored the order of status quo in respect of the schedule property thereby setting aside the order in the FAO. The aforesaid order is sought for to be recalled by opposite party No.2 on the grounds inter alia that the learned court below did not err while setting aside the status quo order in C.S. No.713 of 2007 in view of a decree in T.S. No.108/704 of 2002/2000 of the court of learned Civil Judge (Senior Division), Bhubaneswar in respect of the subject in dispute and the same having attained finality with the dismissal of SLP(C) No.14118 of 2013.

3. The petitioner filed reply and questioned the claim of opposite party No.2 on the ground that the schedule property is succeeded by them and referring to the genealogy, it is pleaded that the parties are not agnates. It is further pleaded that after the death of the petitioner’s father, the schedule property left by him was succeeded by the petitioner and others, inasmuch as, defendant No.1 in the suit, namely, Gouranga Sahoo is a stranger to the family and has no semblance of right over the same. It is also pleaded that the learned court below committed serious wrong in setting aside the order of status quo pending disposal of the suit in C.S. No.713 of 2007 and it was on an erroneous assumption that such an order arrived in the year 2023. Referring to the orders of the learned Civil Judge, Senior Division, Bhubaneswar in the suit, it is further pleaded that the order of status quo dated 25^th September, 2007 was allowed to continue, till it was made absolute by order dated 9^th August, 2023. It is finally pleaded that this Court rightly set aside the decision of the learned 3^rd Additional District Judge, Bhubaneswar dated 29^th July, 2024 in the FAO which unsettled the status quo directed over and in respect of the schedule property.

4. Heard Mr. Das, learned Senior Advocate and Mr. Pradhan, learned counsel appearing for the petitioner and Mr. Tripathy, learned counsel for opposite party No.2.

5. Mr. Das, learned Senior Advocate for the petitioner would submit that the petitioner seeking recall of the Court’s order dated 13^th March, 2025 is not maintainable in the eyes of law. The further submission is that in view of the decision of the learned court below on a premise that the order of status quo is of the year 2023 and it was too late to demand the same when the suit is of the year 2007 is factually incorrect and this Court considering the error apparent on the face of the record rightly intervened and set aside the judgment dated 29^th July, 2024 in the FAO having regard to the fact that the suit for partition in C.S. No.713 of 2007 i