Advocates:
['M/S PRAFULLA KUMAR RATH', '', 'S K BEHERA', 'P K SAHOO', 'A K ROUT', 'R N PARIJA', 'S K PATTNAIK', 'A K BEHERA', 'B K DASH', 'A BEHERA', 'M/S D P DAS', '', 'B K MISHRA', 'K K LENKA', 'M/S DEBAKANTA MOHANTY', 'S MOHANTY', 'A MOHANTY', 'T R MOHANTY']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.138 of 2017

Jambeswar Sahoo & Ors.

….

Petitioner(s)

Mr. P.K.Rath, Advocate

-versus-

Rani Bewa & Ors.

….

Opposite Party(s)

Mr.D.P.Dash , Advocate

Mr.R.K.Mohanty, Sr.Advocate

CORAM:

JUSTICE BISWANATH RATH

Order No.

ORDER

23.03.2022

9.

1.

Heard learned counsel appearing for the parties.

2.

This is a Civil Miscellaneous Petition of the year 2017 with an

order of interim stay of stay of Execution Proceeding No. 12 of 2001

since 21.2.2017. Background involving the case is that undisputedly

petitioners are not involved in the suit involving execution case being

taken up. It appears, petitioners as third party filed application for

inclusion of them to contest the execution case but under a wrong

nomenclature under Order 1, rule 10 of the Code of Civil Procedure.

For there is wrong nomenclature, there is an attempt for conversion of

the application though it should have been an application under Order

21, rule 97 and/or Order 21, rule 97 of the Code of Civil procedure

since petitioners were not involved in the suit proceeding.

3.

For the opinion of this Court nomenclature involving the

application remains immaterial, it is only looking to the claim therein is

taken care of. This Court further finds on allowing the Civil

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Miscellaneous Petition carried to this Court, in Civil Miscellaneous

Petition No,.303 of 2016, this Court was declined to interfere in the

impugned order therein. In the process, when the application of the

petitioners at Annexure-6 is taken up, an application is filed involving

an attempt being taken to evict the petitioners from the disputed land in

pendency of decision on petitioners main application. It is at this stage

an attempt was made to stall the application. Petitioners attempt being

declined, petitioners compelled to file Civil Miscellaneous Petition 138

of 2017 taken up herein Mr.Rath, learned counsel submitted that once

third parties application is pending consideration in the pendency of

Execution Proceeding in the event petitioners are evicted, there remain

nothing to be adjudicated in the ultimate consideration of the third

parties main petition.

4.

Mr.Dash, learned counsel appearing for the decree holder

contested the entertainability of the application at Aannexure-6.

Mr.Dash, learned counsel further submits that the trial court considering

that the 3^rd party is not in possession over the disputed property, the trial

court rightly declined to grant protection in favour of the 3^rd party and

therefore attempted to justify the impugned order. For the opinion of this

Court, since the main application at the instance of third party is

pending, it is not appropriate for this Court to have its opinion on the

entertainability of the case at this stage. It is open to the parties on

contest to take their stand in the contest of the main proceeding at the

instance of third parties, the present petitioners.

5.

Considering the rival contentions of learned counsel appearing

for the parties and looking to the document involved, this Court finds

undisputedly the application of the petitioners at Anenxure-6 remains to

be pending. In the previous round of litigation, this Court declined to

entertain the attempt of the opposite parties on the maintainability of

such application. Looking to the nature of contest advanced by 3^rd

parties in filing the application at Anenxure-6, for the opinion of this

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Court that in the event the application at Annexure-6 is pending in the

Executing Court, the Executing Court became duty bound to take a

decision on such application prior to finalizing the Execution

Proceeding. But in the pendency of such application, there should not

be eviction of such persons. In the process, this Cou