Advocates:
['M/S PRASANTA KU SAHOO', '', 'L N PATEL', 'B K RAGADA', 'H P RAUTA']

2. 27.11.2020

Due to outbreak of COVID-19, this matter is

taken up through Videoconferencing.

2.

Petitioner, in this CMP seeks to assail the

order dated 16.04.202016.04.2019 (Annexure-5) passed

by learned Civil Judge (Senior Division), Keonjhar in CS

No.151 of 2008, whereby he held the order passed

under Order XXVI Rule 9 CPC to be infructuous due to

non-cooperation of the defendants in depositing the cost

for police assistance for which, the Court Commissioner

is not in a position to execute the writ issued under

Order XXVI Rule 9 CPC.

3.

Mr.Sahoo,

learned

counsel

for

the

petitioner submits that the petitioner is defendant No.1

in the aforesaid Suit. He along with defendant No.2 filed

a petition dated 10.03.2010 under Order XXVI Rule 9

CPC for appointment of Survey knowing Commissioner.

Although initially learned trial Court allowed the

petition by appointing a Survey knowing Commissioner

but subsequently recalled the same by order dated

20.09.2010 suo motu. Challenging the said order of

recall dated 20.09.2010, the petitioner filed W.P.(C)

No.19124 of 2010 before this Court, which was disposed

of on 26.11.2010 setting aside the order dated

20.09.2010 . As such, order dated 10.03.2011 got

reviewed. Consequently, learned trial Court issued writ

to the Commissioner for measurement and demarcation

of the suit land and submit his report. However, the

CMP No. 1403 of 2019

2

Commissioner submitted an interim report observing

that due to disturbance and obstruction created by

Judhistira Sahoo, Aru Sahoo and Bhaskar Sahoo, who

are relatives of the defendant No.2, writ could not be

executed. Thus, he sought for police assistance for

execution of the writ. It is submitted by Mr.Sahoo,

learned counsel for the petitioner that the learned trial

Court without affording any opportunity to cross-

examine the Commissioner on the veracity of the

interim report submitted, directed the defendants to

deposit the cost of police assistance. It is submitted that

the persons who created disturbance during execution

of the writ were the relatives of the plaintiff. Further,

learned trial Court should not have directed the

defendants to pay the entire cost of police assistance

and the plaintiff should have shared the cost. He,

therefore, submitted that the impugned order entails

interference. Accordingly, the impugned order may be

set aside.

4.

Taking into consideration the submission

of learned counsel for the petitioner and on perusal

record, it appears that pursuant to the application of

the petitioner for appointment of Survey knowing

Commissioner

and

order

passed

thereon,

the

Commissioner was appointed and a writ was issued for

measurement and demarcation. But, during the spot

visit of the Commissioner, the above named persons

created disturbance and obstruction, for which the

3

Commissioner sought for police assistance for execution

of the writ. Since the Survey knowing Commissioner has

been deputed at the instance of the defendants they

should bear the cost for the police assistance. Thus, the

plea of Mr.Sahoo, learned counsel for the petitioner to

the effect that the plaintiff should share the cost does

not have any merit.

5.

Mr.Sahoo,

learned

counsel

for

the

petitioner, however, in course of hearing submits that if

a reasonable time is given, he will deposit the cost for

police assistance.

6.

Accordingly, this Court, without interfering

with the impugned order, directs that if the petitioner

deposits the cost for police assistance within a period of

twenty days hence, learned trial Court shall do well to

issue a fresh writ to the Commissioner in terms of order

passed under the execution order under Order XXVI

Rule 9 CPC and proceed with the matter in accordance

with law.

7.

With the aforesaid observation, the CMP is

disposed of.

7.1

Authenticated

copy

of

this

order

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