Advocates:
['A G A', 'M/S PRASANNA KU NAYAK', '', 'ALOK KU MOHAPATRA']

Page 1 of 4

AFR IN THE HIGH COURT OF ORISSA CUTTACK

W.P.(C) No.4667 of 2010

In the matter of an application under Articles 226 & 227 of the

Constitution of India.

-----------

Collector, Balangir

…. Petitioner

Versus

Hazi Md. Ayub Khan & Ors. …. Opposite Parties

For Petitioner

… Mr.S.P.Panda, Additional

Government Advocate

For Opposite Parties … None

J U D G M E N T

PRESENT:

THE HONOURABLE JUSTICE BISWANATH RATH

Date of Hearing and Judgment: 14.12.2022

Biswanath Rath, J.

Even after service of notice and appearance of set

of counsel for contesting Opposite Party No.1 appearing for the Plaintiff in

the Civil Suit No.67 of 2006, nobody is appearing to contest the matter.

2.

The Writ Petition involves a challenge to the order of the Civil Judge

(Senior Division), Titilagarh in C.S. No.67 of 2006 in allowing the

application of the Plaintiff vide Annexure-4 requesting the trial court for

disposing of the suit and passing the order for refund of the Court Fee. On a

// 2 //

Page 2 of 4

combined reading of Section 89 of C.P.C. and Section 16 of the Court Fees

Act, taking this Court to the nature of disposal of the suit involving a

settlement outside the Court, Mr. Panda, learned Additional Government

Advocate contended that the impugned order does not meet the contingency

of Section 16 of the Court Fees Act. Particularly for there is no involvement

of action in exercise of power under Section 89 of the C.P.C.

3.

It is in the above circumstance, Mr.Panda, learned Additional

Government Advocate requests this Court for interfering in the impugned

order and setting aside the same. Considering the contention raised herein by

the learned State counsel through the impugned order vide Annexure-5, this

Court finds decision therein involved the application of the Plaintiff at

Annexure-4, fact and relief sought for therein appears to be as follows:-

“1) That, out of court plaintiff and defendants have

compounded the matter amongst themselves and the

plaintiffs have received the agreed amount in full and

financial of the claimx amount.

Hence prayed that the Hon’ble court be pleased to

dispose of the suit and passed order for refund of court

on a combined pleading of Section 89 of C.P.C. and Sec.

16 of the Court fees act.”

It is in consideration of the above application, getting into the

pleadings and the requests, this Court finds, there remains no doubt that the

Plaintiff and the Defendant have compounded the matter amongst

themselves without aid of the Court and however there involves a request to

the trial court for passing an order for refund of the Court Fee in terms of

Section 89 of C.P.C. and Section 16 of the Court Fee Act. Considering

application of the provision at Section 89 of C.P.C. and Section 16 of the

Court Fee Act by the Plaintiff and the Trial Court also, the Plaintiff in filing

the application and the trial court in passing the impugned order, this Court

here likes to take reference to the provision referred hereinabove as follows:-

// 3 //

Page 3 of 4

Section 89 of C.P.C.:- Application to set aside sale on deposit-

(1) Where immovable property has been sold in execution of a

decree, any person claiming an interest in the property sold at the

time of the sale or at the time of making the application, or acting

for or in the interest of such person, may apply to have the sale

set aside on his depositing in Court.

(a) For payment to the purchaser, a sum equal to five percent of the

purchase-money and

(b) For payment to the decree-holder, the amount specified in the

proclamation of sale as that for the recovery of which the sale

was ordered, less any amount which, may since the date of such

proclamation of sale, have been received by the decree-holder.

(2) Where a person applies under rule 90 to