IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.829 of 2025 Mousim Akhtar …. Petitioner Mr. S.P Mishra, Advocate -versus- Mohammad Afsar Hossen & Ors. …. Opposite Parties Mr. S.P. Mishra, Sr. Advocate along with Mr. Mihir Sahoo, Advocate CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No.02 ORDER 04.06.2025 1. Heard Mr. Sidhartha Mishra, learned counsel appearing for the Petitioner and Mr. S.P. Mishra, learned Sr. Counsel appearing along with Mr. Mihir Sahoo, learned counsel appearing for the Opp. Parties. 2. This application has been filed inter alia challenging the order dated 08.05.2025 passed by the learned District Judge, Bhadrak in I.A. No.12 of 2025 arising out of RFA No.29 of 2023. 3. Learned counsel appearing for the Petitioner contended that challenging the preliminary decree passed in a suit for partition in C.S. No.41 of 2021, the present Petitioner has moved the learned District Judge, in RFA No.59 of 2023. Since during pendency of the appeal Private Opp. Parties made some construction on application under Order 39 Rule-1 and 2 was filed with a prayer to restrain the private Opp. Parties from making any construction over the suit schedule property. But the learned District Judge, without proper appreciation of the grounds taken in the IA rejected the same vide the impugned order dated 08.05.2025 under Annexure-7. 4. It is contended that since the decree passed in the suit for partition was challenged at the stage of preliminary decree, it cannot be held that the share has been determined in between the parties. It is apparently contended that since the decree has not attained finality because of pendency of the appeal, the interim application filed by him to restrain the private Opp. Parties from making any construction over the suit land should have been allowed. It is accordingly contended that the impugned order needs its interference of this Court. 5. Mr. S.P. Mishra, learned Sr. Counsel appearing for the Opp. Parties on the other hand contended that since in course of hearing of the IA, an admission was made by the present Petitioner that the construction has already been completed up to roof level and only the doors and windows are to be affixed, taking into account such position of the construction, learned District Judge, rightly refused to pass any order of restrain. 5.1. Mr. Mishra, made a further submission that all the construction which is challenged by the petitioner with filing of the IA has already been completed and accordingly, no fruitful purpose will be served if any order of restrain will be passed at this stage. 5.2. It is also contended that with regard to any construction made over the suit land, private Opp. Parties will not claim any equity. 6. Having heard learned counsel appearing for the parties and considering the submissions made, this Court while disposing the application, directs learned District Judge, Bhadrak to dispose of the RFA No.59 of 2023 on merit by giving due opportunity hearing to the parties concerned as expeditiously as possible preferably by the end of this year. 6.1. However, it is observed that save and except the constructions already made by the Private Opp. Parties, no further construction will be made over the suit land till disposal of the appeal. 7. This Court grants liberty to the Opp. Parties to fix the doors and windows in the construction already made over the suit land, but without claiming any equity. 8. Accordingly, the CMP stands disposed of. (Biraja Prasanna Satapathy) Vacation Judge Jayakrushna