IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 727 of 2021 Application under Article 226 and 227 of the Constitution of India.

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1. Trina th Maharana 2. Tophan Maharana 3. Gagana Maharana

4. Tilotama Maharana

5. Pravakar Maharana ….. Petitioners -versus-

1. Bhaskar Chandra Swain

2. Dhani Maharana

3. Ganeswar Jena

4. Baikuntha Swain

5. Surendra Swain 6. Congress Swain 7. Tilottama Khatei

8. Kumudini Palai ….. Opposite Parties For Petitioners : Mr. Sanatan Das, Advocate For Opp. Parties : Ms. Pratyusha Naidu, Advocate --------------------------------------------------------------------------------

CORAM:

HON’BLE MISS JUSTICE SAVITRI RATHO

JUDGMENT

08.05.2025 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 pe