Advocates:
['SOUMYA MISHRA', '', 'G N PARIDA', 'N SHARMA', 'S PARWEEN']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.189 OF 2021

Hadu Martha and others

….

Petitioners

Mr. Soumya Mishra,

Advocate

-versus-

Janhabi Bhusan Maharatha

….

Opp. Party

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

02.07.2021

03.

1. This matter is taken up through video conferencing mode.

2. The Petitioners in this CMP seek to assail the order dated

20^th March, 2021 (Annexure-9) passed by learned Civil Judge

(Senior Division), Banpur in Execution Case No.1 of

2017,whereby he allowed the execution petition and directed

the Process Server of the Court to deliver vacant possession to

the D.Hr. by evicting the J.Dr.-Petitioners from the Part-I of

the suit scheduled property, they have entered upon, after the

decree has been passed. The J.Drs. (Petitioners) are also

directed to deliver vacant possession of the land mentioned in

Part-1 of suit schedule property to the D.Hr. within a period

of one month from the date of passing of the order.

3. Mr. Mishra, learned counsel for the Petitioners submits that

C.S. No.199 of 2010 was filed for declaration of right, title

and possession over the suit property, permanent injunction

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and alternatively for mandatory injunction as well as recovery

of possession.

4. Learned trial court decreed the suit with the following

observation and order:

“……….. When the defendants interfered with the

possession of plaintiff over Schedule ‘A’ and ‘B’

properties of the present suit, his (plaintiff) right over

the suit properties is required to be protected by

issuance of injunction. Though the plaintiff has

prayed for alternative relief of mandatory injunction

and recovery of possession, no evidence is led on that

score. Thus, it is held that the plaintiff is entitled only

to the relief of permanent injunction, as prayed for.

Hence, it is ordered.

Order

The suit be and the same is decreed in part exparte

against the defendants No.1, 3 and 4 but in the

circumstances there is no order as to cost.

The defendants No.1, 3 and 4 are hereby permanently

injuncted from entering upon the suit properties.”

From the above, it is evident that while granting permanent

injunction, learned trial refused to grant mandatory injunction

and recovery of possession as prayed for. However, the

Plaintiff-D.Hr. filed Execution Case No.1 of 2017 alleging

that:

“That the dhr is a retired service holder. During the

service career and also thereafter, his family was

staying outside the village and the dhr used to sojourn

in his residential house to look after his landed

properties and other purposes. On 27.02.2017 when

he was alone in his residential house, the defendant

No.1 being the father guardian/karta of his family

alone with his sons Ajay (D3) and Akhaya (D4)

forcibly entered into the residential house of Dhr

(Part 1 of the schedule of this petition) and occupied

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it driving the dhr out, giving serious threatening. The

dhr being frightened came to the Banpur P.S. and

informed the matter showing the copy of the decree

but no action has been taken by them and finding no

other alternative and being harassed, is approaching

this court for necessary reliefs.”

5. Accordingly, Execution Case No.1 of 2017 was to put him

(the D.Hr.-Opposite Party) in possession. The Petitioners-

J.Drs. on receiving the notice in the execution case filed a

petition under Section 47 of C.P.C. stating that since relief of

mandatory injunction as well as recovery possession has been

refused, the execution case is not maintainable. That petition

was dismissed vide order dated 11^th February, 2019 and

thereafter the execution proceeding continued and the

impugned order dated 20^th March, 2020 was passed. Mr.