Subasini Mishra @ Kar vs Jagdeep Pratap Deo And Others

DR. A.K. RATH, J

This petition challenges the order dated 12.11.2018 passed by the Civil Judge (Sr. Divn.), Sundargarh in Execution Case No.10 of 2004, whereby

and whereunder the executing court rejected the application of the judgment-debtor no.1(e) to stay the further proceeding of execution case till

disposal of C.M.A. No.19 of 2018 filed under Sec.47 C.P.C.

The case has a chequered history. The matter travelled twice to the apex Court and four times to this Court. Plaintiff-opposite party no.1 instituted

T.S. No.3 of 1998 for declaration of title, recovery of possession and permanent injunction in the court of the Civil Judge (Sr. Divn.), Sundargarh

impleading one Ramkrushna Mishra, predecessor-in-interest of opposite party nos.2 to 5 and the petitioner as defendant. During pendency of the suit,

the sole defendant died, whereafter opposite party nos.2 to 5 and the petitioner had been substituted. The present petitioner was defendant no.1(e) in

the suit.

The original defendant filed written statement denying the assertions made in the plaint. The suit was decreed on 26.03.2004. Thereafter the

decree-holder levied Execution Case No.10 of 2004. Felt aggrieved, the defendants filed R.F.A. No.26/32 of 2004 before the 1st Adhoc Additional

District Judge, Sundargarh. The appeal was dismissed. Thereafter, they filed R.S.A. No.551 of 2005 before this Court, which was eventually

dismissed on 4.3.2016. Aggrieved by and dissatisfied with the judgment passed by this Court, they filed SLP (C) No.16004 of 2016 before the apex

Court. SLP was dismissed on 26.07.2016. While the matter stood thus, the judgment-debtors 1(a) and 1(d), opposite party nos.2 and 5 herein, filed

C.M.P. No.1138 of 2016 before this Court assailing the order dated 23.07.2016 wherein executing court held that service of summons on the

judgment-debtors was sufficient. The said petition was disposed of on 10.8.2016 with an observation that in the event an application was filed by the

decree-holder for publication of notice against the judgment-debtors, the executing court shall allow the application and thereafter proceed with the

case. Thereafter, notice was published on 11.12.2016 in the daily ‘Samaj’. The judgment-debtors 1(a) to 1(d) filed C.M.A. No.2 of 2017 under

Sec.47 C.P.C. The petition was dismissed on 30.3.2017. They filed Civil Revision No.2 of 2017 before the District Judge, Sundargarh. The revision

was dismissed on 31.10.2017. Thereafter they filed C.M.P. No.1440 of 2017 before this Court assailing the order passed by the executing court as

well as revisional court. The petition was dismissed on 01.08.2018. Thereafter the matter was travelled to the apex Court in SLP (C) No.24452 of

2018. By order dated 17.09.2018, the apex Court directed the judgment-debtors to deposit Rs.50,000/- before the Supreme Court Legal Services

Committee within four weeks. Finally, the said SLP was dismissed on 26.10.2018. While the matter stood thus, the judgment-debtor no.1(e), petitioner

herein, filed C.M.A. No.19 of 2018 under Sec.47 C.P.C. before the executing court. An application was filed to stay the further proceeding of

execution case till disposal of the petition. By order dated 12.11.2018, the executing court rejected the said application. This petition has been filed to

lacinate the said order.

Heard Mr. P.K. Khuntia, learned Advocate along with Mr. Kalpataru Khuntia, learned Advocate for the petitioner and Mr. P.K. Rath, learned

Advocate along with Mr. Adhiraj Behera, learned Advocate for the opposite party no.1.

Mr.Khuntia, learned Advocate for the petitioner, argued with vehemence that notice was not served on the petitioner. After marriage, the petitioner

is residing in her matrimonial house at Jagannath Colony, PO/PS-Barpali, Dist-Bargarh. She is a permanent resident of Bargarh. The notice was

published in daily ‘Samaj’ published from Rourkela. The newspaper has no wide publication in Bargarh. The decree was obtained by practising

fraud on the court. The petitioner had filed an application under Sec.47 C.P.C. An application was filed to stay the further proceeding of the Execution

Case No.10 of 2004 till disposal of C.M.A. No.19 of 2018. By a laconic order dated 12.11.2018, the executing court rejected the application for stay.

The said order may be quashed. He placed reliance to the decision of this Court in the case of Smt. Priyadarshani Mohapatra vs. Sri Lalmohan

Mohapatra, 2017 (II) OLR 983.

Per contra, Mr. Rath, learned Advocate for the opposite party no.1, submitted that the plaintiff-opposite party no.1 instituted the suit against

Ramkrushna Mishra, father of the petitioner and opposite party nos.3 to 5 and husband of opposite party no.2. He died during pendency of the suit.

Opposite party nos.2 to 5 as well as the petitioner had been substituted. In the cause title, her address has been furnished as “Talsankara, In front

of Bhawanibhawan Field and close to Indian Petrol Pump-Sundargarh Town, PO/PS/Dist./Munsifi:Sundargarhâ€. The petitioner was minor and

represented by her mother guardian. The suit having been decreed, the defendants filed R.F.A. No.26/32 of 2004 before the 1st Adhoc Additional

District Judge, Sundargarh. In the first appeal, the same address has been furnished. The first appeal was dismissed. Thereafter the defendants filed

R.S.A. No.551 of 2005 before this Court furnishing the same address, which met the same fate. They filed SLP (C) No.16004 of 2016 before the

apex Court. In the SLP, the same address has been furnished. Further in C.M.P. No.1138 of 2016 filed by the judgment-debtor nos.1(a) and 1(d), the

other judgment-debtors had been arrayed as proforma opposite party nos.2, 3 and 4. The petitioner has been arrayed as proforma opposite party no.4.

The same address has been furnished in the C.M.P. Earlier, one application filed by the defendant nos.1(a) and 1(d) under Sec.47 C.P.C. was

dismissed. The petitioner has filed C.M.A. No.19 of 2018 under Sec.47 C.P. C. on the self same ground. He further submitted that the principle of

constructive res judicata is applicable to the execution proceeding. The petition for stay has been filed to protract the litigation and to deprive the

decree-holder from enjoying the fruits of the litigation. The decree-holder shall not be deprived of the fruits of the litigation except for good reasons.

He placed reliance to the Full Bench decision of this Court in the case of Rajkishore Mohanty and another vs. Kangali Mohapatra and others, 1972 (1)

C.W.R. 147 and the decision of this Court in the case of Pramoda Chandra Panda vs. Ajaya Kumar Sahoo and others, AIR 1989 Orissa 260.

Plaintiff-opposite party no.1 instituted the suit against Ramkrushna Mishra. The sole defendant died during pendency of the suit. His legal heirs,

namely, opposite party nos.2 to 5 and the petitioner had been substituted as defendant nos.1(a) to 1(e). Petitioner was defendant no.1(e) in the suit.

Notice was sufficient on them. In the cause title, the following address had been furnished.

“All are residents of village Talsankara, infront of Bhawanibhawan field and close to Indian Petrol Pump-Sundargarh Town, P.O./P.S./District and Munsifi-

Sundargarhâ€​.

In the first appeal as well as in the second appeal, the same address had been furnished. The petitioner had been described as minor and represented

by her mother guardian. But then, all the defendants including the petitioner filed SLP(C) No.16004 of 2016 before the apex Court. The cause title of

the said petition reveals that the petitioner was 27 years old. The same address has been furnished in the SLP. Pursuant to the order of this Court, a

notice was published in the daily ‘Samaj’ having wide publication throughout the State. There is no material on record that the daily

‘Samaj’ is not having wide circulation in the locality where the petitioner resides. The submission of learned Advocate for the petitioner is that

after marriage, the petitioner is residing in her matrimonial house at Jagannath Colony, PO/PS-Barpali, District-Bargarh. But then, this Court fails to

understand as to how she along with others filed SLP before the apex Court described her address at Sundargarh. The petitioner was aware of the

proceedings before the court below. Be it mentioned that the judgment-debtor nos.1(c), brother of the petitioner, filed objection before the executing

court stating that the publication of notice in the daily ‘Samaj’ dated 11.12.2016 against the judgment-debtor no.1(e)-Subasini Mishra, petitioner

herein, is not sufficient. The executing court rejected the same on 7.2.2017 holding that the notice was treated to be sufficient. Thereafter on the self-

same ground, the petitioner has filed the petition. The petitioner is sailing on the same boat with that of other judgment-debtors.

In view of the analysis made in the preceding paragraphs, the inescapable conclusion is that the petitioner had contested the case throughout till the

Supreme Court. Notice was published in the daily ‘Samaj’ in the address which has been furnished in the suit, first appeal, second appeal as

well as SLP. The executing court is quite justified in holding that the notice against the defendant no.1(e), petitioner herein, is sufficient.

In Smt. Priyadarshani Mohapatra (supra), a Division Bench of this Court held that the phrase ‘last resided together’ should not be liberally

construed, it has to be read in a manner to give it a meaningful interpretation. It has to be read in the contest of the facts and circumstances of each

case. It can by no stretch of imagination be treated to be a temporary place of stay. The term ‘residence’ should be given a purposeful

interpretation to mean something more than a ‘temporary stay’. It cannot certainly be a place of outing, a pleasure trip, visit for health check up

or business or temporary stay for a change.

As held above, notice was published in the daily newspaper in the address furnished by the petitioner.

In Pramoda Chandra Panda (supra), this Court held that the decree-holder should not be deprived of the fruits thereof except for good reasons.

In Rajkishore Mohanty and another (supra), this Court held that if after receipt of the notice the judgment-debtor does not appear or does not show

cause to the satisfaction of the Court why the decree should not be executed, the Court shall order that the decree be executed. Such an order passed

by the Court is not automatic, but involves an implied adjudication that the decree-holder has a right to execute the decree, that the judgment-debtor is

liable to satisfy the decree and that the execution application is not barred by limitation. The principle of constructive res judicata is applicable to

execution proceedings. It further held that where in response to the notice under Order 21, Rule 22, Civil Procedure Code, the judgment-debtor either

does not appear in Court or having appeared does not object to the execution on the ground that the execution application is barred by limitation, and

the Court thereupon orders that the execution do proceed, then by application of Explanation IV to Section 11 of the Civil Procedure Code, it would be

deemed that the plea of limitation had been raised and rejected and consequently the judgment-debtor would not be permitted at a later stage of the

same execution proceedings to raise the plea of limitation.

There is no quarrel over the proposition of law. But then, the petitioner has filed C.M.A. No.19 of 2018 under Sec.47 C.P.C. In view of the same,

the further proceeding of the Execution Case No.10 of 2004 shall remain stayed for a period of thirty days. The executing court shall take up the

petition on day-to-day basis and dispose of the same within a period of thirty days. In the event, any of the parties will not cooperate, then the

executing court shall proceed with the matter in accordance with law.

The petition is disposed of with the aforesaid observations. No costs.

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