Location: High Court of Orissa, Cuttack

Date: 01-Sep-2025 18:14:28

IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.647 of 2025

(In the matter of an application under Article 227 of the Constitution

of India)

Praveen Chandra Bhanjdeo …. Petitioner

-versus-

Pratibha Manjari Devi & Ors.. …. Opposite Parties

Advocate(s) appeared in this case:-

For Petitioner : Mr. B.Bhuyan, Sr.Advocate

For Opposite Parties : Mr. L.K.Maharana, Advocate

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

25^th August 2025 B.P. Routray, J.

1. Heard Mr. B.Bhuyan, learned Senior Counsel for the Petitioner and Mr. L.K.Maharana, learned counsel for Opposite

Party No.1.

2. Present CMP is directed against impugned order dated 4^th April 2025 passed by learned District Judge, Baripada, Mayurbhanj

Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 in RFA No.28 of 2023, wherein the operation of the final decree has been stayed.

3. One Padma Manjari Devi filed C.S. No.366 of 2022 before learned Senior Civil Judge, Baripada praying for partition, where present Petitioner was impleaded as Defendant No.1. In the said suit preliminary decree was passed on 20^th August 2022 and final decree on 21^st February 2023. The same were challenged by Pratibha Manjari Devi, who was Defendant No.3 in the aforesaid suit, in RFA No. 21 of 2023 and 28 of 2023 respectively on the ground that notice was not served upon her properly and secondly, she had a will in her favour in respect of the suit property. In the appeal against final decree, i.e. in RFA No. 28 of 2023, a petition was filed on 3^rd January 2025 by the Appellant praying to stay operation of the final decree and the same being allowed in favour of Defendant No.3, present CMP is filed by Defendant No.1 challenging said order of the 1^st Appellate Court dated 4^th April 2025.

4. Mr. Bhuyan, learned Senior Counsel for the Petitioner submits that the power of the Appellate Court under Order 41 Rule 5 of the CPC does not permit grant of stay of operation of final decree and secondly, there was no necessity on the part of the 1^st Appellate Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28 Court to direct for stay operation of the final decree after more than two years from the date of decree. It is further submitted that had it been a decree of declaration there would have been justification on the part of the Appellate Court for directing stay of operation of the decree. But in the facts of this case where in a suit for partition the final decree has already been effected much before the present impugned order, there cannot be any justification from any stretch to stay operation of the final decree.

5. On the other hand, Mr. Maharana, learned counsel for Opposite Party (Defendant No.3) submits that it is not correct to say that the Appellate Court is handicapped to stay operation of the decree in exercise of the powers conferred under Order 41 read with Section 151 of the CPC and so far as the other contention regarding necessity of passing such order of stay is concerned, it was very much necessary for the reason that Defendant No.1 was misutilizing said decree granted in her favour which is challenged on the ground of suppression of facts and fraud. It is further submitted that taking advantage of grant of final decree in his favour, Defendant No.3 is pursuing the same at different forums for such consequential reliefs in his favour raising multiplicity of proceedings for Defendant No.3.

Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:14:28

6. It is submitted by Mr. Bhuyan, learned Senior Counsel that, earlier against the interim order passed in the RFA the parties had approached this Court in CMP No.726 of 2024 and this Court vide order dated 16^th January 2025 directed the parties to maintain status- quo over the suit property and not to create any third party interest and also not to change the nature and character of the suit land pending the appeal before the 1^st Appellate Court. Therefore, when such interim orde