p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1465 of 2024 Nalla Govind Rao …. Petitioner Mr. B. S. Tripathy (1), Sr. Advocate -Versus- Nalla Maheswar Rao and others …. Opposite parties CORAM: MR. JUSTICE R.K. PATTANAIK Order No. ORDER 21.02.2025 03. 1. Heard Mr. Tripathy, learned Senior Advocate for the petitioner. 2. No notices are issued to the opposite parties, as the matter is disposed of at the stage of admission. 3. Instant petition is filed by the petitioner challenging the impugned order dated 4th December, 2024 passed in connection with C.R.P. No.09 of 2024 under Annexure-7 by learned Additional District Judge, Koraput confirming the order as at Annexure-5 in Execution Case No.8 of 2024 on the grounds inter alia that the same is contrary to the facts on record and law. 4. Mr. Tripathy, learned Senior Advocate for the petitioner submits that the petitioner is defendant No.1 in the suit, wherein, a preliminary decree was passed vide Annexure-2 indicating therein the preferential right for him to choose his share out of the suit property but it has not been given effect to so revealed from the Commissioner’s report as at Annexure-3 and it has led to the passing of the final decree as per Annexure-4, whereafter, the execution in the E.C. Case No.8 of 2024 was initiated. It is fairly submitted by Mr. Tripathy, learned Senior Advocate that such an application p. 2 challenging the report of the Commissioner not being in consequence with the final decree should have been moved during the pendency of the final decree proceeding but it has not been so. The further submission is that the petitioner, with such grievance, moved an application in the execution proceeding but it was not entertained by the Court of 1st instance and also by learned Additional District Judge, Koraput in C.R.P. No.09 of 2024 followed by a decision at Annexure-1. Considering the submission as above and in view of the preliminary decree dated 7th February, 2019 which clearly indicated a 1st preference to be given to the petitioner as defendant No.1 to choose his 1/9th share of out of the suit property and apparently, the same is not considered at the time of allotment so made to reveal from Annexure-3, nevertheless, an application in that regard is filed during execution which ought to have been in terms of Order 21 Rule 99 CPC and such decree has merged with the final decree dated 3rd July, 2024 as at Annexure-4, the Court is of the view that a direction is required to be issued to learned Civil Judge (Senior Division), Koraput to consider the same and to reconcile the final decree in terms of the preliminary decree dated 7th December, 2019 vis-a-vis preferential right allowed in favour of the petitioner. In other words, in view of the fact that the suit is about partition, a final decree is to be withdrawn which appears to be not in consequence with the preliminary decree i.e. Annexure-2 revealed from the report of the Salaried Amin at Annexure-3, in the fitness of things, a direction is needed to be issued to learned court below to consider it and to pass appropriate orders in accordance with law. 5. Hence, it is ordered. 6. In the result, the CMP stands allowed. As a necessary corollary, the impugned order in C.R.P. No.09 of 2024 passed by learned Additional District Judge, Koraput is hereby set aside with a p. 3 direction to learned Civil Judge (Senior Division), Koraput to consider the plea of the petitioner filed after the initiation of execution, the same being with an application is restored to for a decision so as to bring the final decree consistent with the preferential right allowed in favour of the petitioner and to pass necessary orders in terms thereof preferably within a period of four weeks from the date of receipt of a copy of this order. In the circumstances, however, there is no order as to costs. 7. Urgent copy of this order be issued as per rules. (R.K.Pattanaik) Judge Rojina Designation: Junior Stenographer