IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.330 of 2025 Muralidhar Pradhan …. Petitioner Mr. Sanjeev Udgata, Advocate -Versus- Sisira Kanta Swain & others …. Opposite Parties Mr. Rajjeet Roy, Advocate CORAM: MR. JUSTICE R.K. PATTANAIK Order No. ORDER 07.03.2025 01. 1. Heard Mr. Udgata, learned counsel for the petitioner and Mr. Roy, learned counsel for the opposite parties. 2. Instant petition is filed by the petitioner challenging the impugned notice of warrant for delivery of possession as per Annexure-1 on the grounds stated therein. 3. Mr. Udgata, learned counsel for the petitioner submits that an application in terms of Order 41 Rule 5 CPC was filed seeking stay of execution pending disposal of the appeal but the same has not been disposed of as yet. Referring to Sub-rule(s) 3 & 4 of Rule 5 of Order 41 CPC, Mr. Udgata, learned counsel would further submits that the Court in appeal is to consider stay of execution, if it is satisfied that substantial loss is likely to result to the party applying for stay unless the order is made, with such other conditions fulfilled, as mentioned therein. In the instant case, according to Mr. Udgata, learned counsel, even though, such a request is pending decision vide I.A. No.2 of 2025, the same is not yet disposed of, as a result of which, the impugned notice of warrant has been issued in Execution Case No.299 of 2024, hence, the same is unjustified. 4. Mr. Roy, learned counsel for the opposite parties, on the other hand, would submit that any such stay shall be subject to the conditions enumerated in Rule 5 of Order 41 of the C.P.C. That apart, the contention of Mr. Roy, learned counsel is that the appeal is not yet admitted. The further submission is that the opposite parties have raised a ground on Court fee with an objection filed and the same is pending orders before the Court of learned District Judge, Khurda, Bhubaneswar in R.F.A. No.97 of 2024 and unless and until, such a ground is considered and the appeal is admitted, the stay vis-à-vis notice of warrant for delivery of possession issued as per Annexure-1 cannot be considered. 5. With the submissions of learned counsel appearing for both the sides and as it is claimed that admission of appeal is pending before the learned Court below and also I.A. No.2 of 2025 filed in terms of Order 41 Rule 5 CPC, whether, the execution is to be stayed or not at the behest of the petitioner, against whom, the decree has been passed in C.S. No.357 of 2020, the same is required to be duly examined by the learned District Judge, Khurda, Bhubaneswar without delay. The Court is of the view that learned Court below is to consider the admission of appeal in the first place and thereafter, to proceed to consider disposal of I.A. No. 2 of 2025. Since, there has been delay in disposal of the appeal and also the IA, in which, the office note is pending, as informed, the Court is of the further view that learned Court below is to be directed to consider the same at the earliest to deal with the plea of stay vis-à- vis the execution of the decree arising out of C.S. No.357 of 2020. 6. Accordingly, it is ordered. Page 3 of 3 7. In the result, the CMP stands disposed of with the direction as aforesaid. It is directed that learned District Judge, Khurda, Bhubaneswar shall consider the admission of Appeal in R.F.A. No.97 of 2024 (if not already admitted) and also I.A. No. 2 of 2025 and thereafter, to consider the request for stay of execution of the decree in Execution Case No.299 of 2024 providing an opportunity of hearing to both the sides followed by an order at the earliest preferably within a period of four weeks from the date of receipt of a copy of this order. The Court further directs that the notice of warrant as to delivery as per Annexure -1 and its execution shall be kept in abeyance, till such time, the IA filed under Order 41 Rule 5 CPC is heard and disposed of by the learned Court below. 8. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Designation: Personal Assistant