Page 1 of 6. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1943 of 2025 Sarata Chandra Kundu and others ..... Petitioners Represented by Adv. – Mr. Ashok Kumar Sarangi -versus- Karunakar Kund and others ..... Opposite Parties Represented by Adv. – Mr. Ashok kumar Mohapatra, Mr. V.Mohapatra, S. Mishra (Caveators) Mr. J. Mohapatra, Mr. P. Bhagat (O.P.No.4) CORAM: MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 07.04.2026 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioners as well as learned counsel appearing for Opposite Party. Perused the CMP application as well as the prayer made therein. 3. By filing the present CMP application under Article 227 of the Constitution of India, the Defendant in C.S. No.68 of 2004 disposed of by the learned Civil Judge (Junior Division), Kendrapara has approached this Court challenging Page 2 of 6. the impugned notice dated 01.08.2022 issued by the learned Civil Court Commissioner of Civil Judge, Kendrapara at Annexure-1 on the ground that the same is illegal and arbitrary and beyond jurisdiction and with a further prayer to quash the entire proceeding in Execution Case No.8 of 2022 pending before the learned Executing Court. He has also made a prayer for a direction to the learned Civil Judge, Kendrapara to ensure that the Commissioner while demarcating the suit schedule land confine strictly to the task of demarcation as per the order dated 25.07.2022 passed in RSA No.355 of 2010 by a coordinate Bench of this Court. 4. Learned counsel for the Petitioners at the outset contended that the Opposite Party-Plaintiff filed a suit for permanent injunction before the learned trial Court. The suit was dismissed by the learned trial Court. Being aggrieved by such dismissal of the suit the Plaintiff preferred an appeal before the learned First Appellate Court which was registered as RSA No.10 of 2007 in the Court of learned Additional District Judge, Kendrapara. The First Appellate Court by virtue of its judgment dated 23.07.2010 allowed the appeal and the suit was decreed. 5. Learned counsel for the Petitioners further contended that after the appeal was allowed, the Defendants preferred a second appeal before this Court which was registered as RSA No.355 of 2010. The abovenoted second appeal was heard and disposed of vide judgment dated 25.07.2022 thereby Page 3 of 6. allowing the second appeal in part. On perusal of the judgment dated 25.07.2022 at Annexure-3, this Court observed that although the suit was filed with a prayer for grant of permanent injunction however the relief was modified under Order 10 Rule 7 of the CPC and the judgment and decree passed by the learned First Appellate Court was set aside and the Plaintiffs suit was decreed by a passing decree for demarcation of suit land on comparison of the record of rights published in the Consolidation Operation and the final map prepared therein leaving it open to the Plaintiff to execute the said decree seeking deputation of the Civil Court Commissioner to complete the exercise. 6. After disposal of the abovenoted second appeal, the Plaintiff filed an execution case which was registered as Execution Case No.8 of 2022. It is stated at the bar that the aforesaid execution case was disposed of on satisfaction of the decree. Learned counsel for the Petitioners at this stage contended that the Plaintiff has filed another Execution Case bearing Execution Case No.1 of 2026 with a prayer for recovery of possession with the help of the Executing Court. Learned counsel for the Petitioners at this juncture contended that there was no such prayer for recovery of possession in the original plaint and that no decree has been passed by granting the relief of recovery of possession of the suit scheduled land. On such ground learned counsel for the Petitioners contended that the subsequent execution case is Page 4 of 6. not maintainable in law. On a query being put by this Court, learned counsel for the Petitioners contended that he has already filed an objection in the Execution Case No.01 of 2026 which is pending before the learned Civil Judge (Junior Division), Kendrapara. 7. Learned counsel appearing for the Plaintiff-Opposite Party on the other hand contended that the suit filed by the Plaintiff was decreed and that the prayer made was modified under Order 10 Rule 7 of the CPC by this Court in RSA No.355 of 2010 which was disposed of by a judgment dated 25.07.2022. He further contended that although in the first execution case, the land was demarcated in execution of the decree passed by this Court in the abovenoted second appeal however the Petitioners is yet to get back the possession of the suit scheduled land. Accordingly, the Petitioners had no other alternative but to file the subsequent execution case with a prayer for recovery of the possession. In such view of the matter, learned counsel for the Plaintiff contended that the present CMP application is devoid of merit and accordingly the same should be dismissed. 8. Having heard the learned counsels appearing for the respective Parties on a careful examination of the materials on record as well as the background facts leading to the filing of the present CMP application, this Court observes that the Defendant in the suit, who happens to be the Opposite Party in the Execution Case No.8 of 2022, has approached this Page 5 of 6. Court challenging the impugned notice dated 01.08.2022 issued by the Civil Court Commissioner and he has also challenged the entire proceeding in the Execution Case No.08 of 2022 stated to be pending in the Court of Civil Judge (Junior Division), Kendrapara. Learned counsel for the Plaintiff contended that Execution Case No.08 of 2022 has already been disposed of and therefore, the present CMP application which arises out of Execution Case No.08 of 2022 is absolutely misconceived and the same is not maintainable. 9. Considering the submissions made by the learned counsels appearing for both sides, this Court is of the view that since the Plaintiff has filed another Execution Case No.01 of 2026 after disposal of the previous Execution Case No.08 of 2022 and in the said Execution Case the Defendant has already filed his objection, it would not be fair and proper on the part of this Court to interfere in the proceeding at this stage. Since the Defendant-Petitioners have already filed their objection and the same is pending for consideration in Execution Case No.01 of 2026, this Court deems it proper to dispose of the present CMP application by directing the learned Executing Court to make every endeavour to consider the objection filed by the Defendant-Petitioners as expeditiously as possible, after providing opportunity of hearing to both sides, preferably within a period of two months from the date of communication of a copy of today’s order. It is needless to mention here that it is open to the Page 6 of 6. learned counsel for the Defendant to raise the question of maintainability of the second execution case with a prayer for recovery of possession before the learned Executing Court which shall be duly considered by the learned Executing Court. It is further clarified that till disposal of the objection petition filed by the Defendant-Petitioners, learned Executing Court shall not take any coercive action against the Parties in the pending Execution Case. 10. With the aforesaid observation and direction, the CMP application stands disposed of. ( A.K. Mohapatra ) Judge Sisir Designation: PERSONAL ASSISTANCE