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ORISSA HIGH COURT
Savitri Ratho, J.
Trinath Maharana – Petitioners
versus
Bhaskar Chandra Swain and Ors. – Opp. Parties
CMP No.727 of 2021
Decided on 8.5.2025
Civil Procedure Code, 1908 – Sections 35 and 35-A – Compensatory cost – Award of – Provisions of Sections 35 and 35-A CPC do not in any way affect wide discretion vested in by High Court in exercise of its inherent power to award costs in interests of justice in appropriate civil cases – Principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by CPC – Present system of levying meagre costs in civil matters or no costs in some matters, is wholly unsatisfactory and does not act as a deterrent to vexatious or luxury litigation borne out of ego or greed, or resorted to as a ‘buying-time’ tactic – If any of parties have unreasonably protracted proceedings, Judge shall have discretion to impose exemplary costs after taking into account costs that may have been imposed at the time of adjournments. (Paras 13 and 14)
Result: CMP allowed with cost.
JUDGMENT
Savitri Ratho, J.—This application has been filed by some of the JDrs for setting aside the order dated 08.11.2021 passed by the learned Civil Judge (Sr. Division), Puri in Execution Case No. 10 of 2014 arising out of C.S. No. 384 of 2005.
Case of the Petitioners
2. One Bhaskar Chandra Swain (Opposite Party No.1) filed C.S. No. 384 of 2005 before the Court of the Civil Judge (Sr. Div.), Puri claiming declaration of title over Schedule-A property and recovery of possession of the same with further declaration of the right of easement over Schedule-B property. The present petitioners are the co-owners of the suit properties along with the present Opp. Party No.2- Dhani Maharana. All the defendants were set ex-parte without putting any written statement the suit was concluded on 30.08.2009 by pronouncement of the judgment and a decree was drawn on 31.08.2009. The plaintiff as the D.Hr filed the Execution Case before the trial/executing Court vide Execution No.-10 of 2014. The present petitioners filed different petitions along with a Misc. Case U/s 47 of the Code of Civil Procedure vide CMA No.-212/2021 (FN-906/21) which is subjudice. While deciding the interim petitions, the Executing Court imposed cost of Rs.3,000/- as compensatory cost upon each of the petitioners (J.Drs) U/s 35A of the Code of Civil Procedure with condition precedent for further participation of the petitioners in the Executing proceeding. Petitioners have also sought relief to set-aside the ex-parte judgment and Decree under Order 9 Rule 13 of the CPC vide CMA No. 252 of 2014 which is pending before the trial Court. On 08.11.2021, the JDrs filed several petitions and some memos seeking for permission to deposit the cost through P.C.R., and exemption of payment of cost by Dhani Maharana and for stay of proceeding in view of filing CMA No. 906 of 2021 under Section 47 of the C.P.C. The executing court directed for issuance of warrant of execution while rejecting the petitions.
Background
3. The status of the parties in the Court below have not been indicated in the cause title of the CMP nor indicated in the petition giving rise to some confusion as who were the defendants and who are the JDrs . As the copy of the plaint has been filed as Annexure-1 to the CMP and copies of the orders dated 03.02.2020 and 27.10.2020 passed in the execution case have been filed by learned counsel for the opposite party No.1 (D.Hr) along with a Memo. On a perusal of the plaint and these orders, the background of the case can be gathered which is as follows.
4. Opposite Party No.1- D.Hr as plaintiff had filed the C.S. No. 384 of 2005. Kotari Maharana, (since deceased) mother of the petitioner No.1 to 4 and wife of Petitioner No.5 was defendant no.1. Opposite party No.2 was Defendant No.2 and the Opposite party No.3 to 8 were the other defendants.
5. Execution case No. 10 of 2014 had been filed by Opposite party No.1-D.Hr for execution of the decree in C.S. No. 384 of 2005. Application under Order 9, Rule 13 C.P.C had been filed by the J.Drs for setting aside the exparte decree and hence they had filed applications in the execution proceedings at different points of time for stay of the execution proceedings. These had been rejected by the learned executing court by holding that since no suit instituted by the J.Dr against the D.Hrs was pending, the requirements of Order 21, Rule 29 C.P.C were not fulfilled for staying the execution proceeding.
6. On 01.02.2020, an application had been filed by the J.Drs for rehearing the different petitions which had been heard on 20.01.2020 as the legal representatives and successors of Dhani Maharana and Sakuntala Maharana had not been impleaded as parties. The application dated 01.02.2020 was rejected on03.02.2020 and later, on the same day order was delivered rejecting all the petitions filed earlier by the J.Dr No.1 (b) and J.Dr No.2 as being devoid of merit. While rejecting the petitions, it had been observed that similar petitions
Award of cost – Provisions of Sections 35 and 35A CPC do not in any way affect wide discretion vested in by High Court in exercise of its inherent power to award costs in interests of justice in appr....
A court cannot modify a decree for costs after it has been executed and satisfied, as it becomes functus officio.
The court maintains discretion in imposing costs in setting aside ex parte judgments, with considerations for delay and securing decree amounts clarified.
The appellate court erroneously imposed the cost of suit, leading to a stay of execution proceedings.
Costs must be proportionate to the amount of the modified decree in execution proceedings; excessive claims beyond the modified amount are impermissible.
Conditions for setting aside exparte decrees must be reasonable and facilitate participation in proceedings without imposing disproportionate deposit requirements.
Exemplary costs in writ petitions must be reasonable, based on actual gains and misconduct, and not arbitrary figures.
Imposing onerous deposit conditions for setting aside exparte decrees is unwarranted and should be proportionate to ensure access to justice for the defendants.
Imposing costs as a condition to set aside an ex parte decree is unjust, especially when the preliminary decree is set aside, and the final decree does not render the revision infructuous.
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