JAGAT JIBAN PRASAD Vs. KRISHNA GUPTA

JUDGEMENT

(1.) The petitioner being aggrieved with the order of the 2nd Addl. Civil Judge (Sr. Divn.), Cuttack passed in Execution Case No. 10 of 2005 dated 10.2.2009 under Annexure-3, has approached this Court for quashing of the same.

(2.) For appreciating the cases of the respective parties, I may mention here that one Ramakanta Gupta, who is the father of the present opposite party No. 1 along with six others including the present opposite party Nos. 4 and 5 instituted Title Suit No. 356 of 1998 impleading the present, petitioner as defendant No.6 and others for partition of the suit schedule properties and rendition of accounts. The said suit was decreed preliminarily with regard to the claim of the plaintiffs for partition of the suit properties whereas the other prayer for rendition of account was dismissed.

(3.) It is an undisputed fact that judgment and decree in T.S. No.356 of 1998 has never been challenged. A prayer was made in the final decree proceeding by the plaintiff No.1(a), 2(a) and 2(e) who are opposite party Nos.1, 4 and 5 for appointment of receiver in respect of the tenanted shop houses standing over the suit properties on the allegation that the present petitioner who was defendant No.2 in the said suit on the strength of a power of attorney, though collecting monthly rents from the shop owners but is misappropriating the same. The learned 2nd Addl.Civil Judge (Sr. Divn.), Cuttack disposed of the Civil Miscellaneous Application 141 of 2003 arising out of final decree proceeding No.T.S. 356 of 1998, after hearing the parties and passed the order on 21.9.2004 (Annexure-2) in refusing the prayer of the petitioners for appointment of receiver but to protect the interest of the petitioners directed the present petitioner to deposit of Rs. 92,418/- in Court to be payable to the petitioners towards the balance house rent which was calculated tentatively within a period of one month and to deposit in Court the tentative share of monthly house rent of the petitioners in that Civil Miscellaneous Application by the second week of every succeeding month till disposal of the final decree proceeding. Since the present petitioner as opposite party No.13 in C.M.A. No.141 of 2003 failed to comply the orders of the Court, the present opposite parties levied execution proceeding which was registered as Execution Case No.10 of 2005 for realization of Rs. 1,52,499/-. In the said Executive Case No.10 of 2005 the learned 2nd Addl. Civil Judge (Sr. Divn.), Cuttack by the impugned order at Annexure-3 directed the present petitioner who was judgment debtor in that execution proceeding to pay Rs. 1,52,499.23 paisa towards house rent for the period from 21.9.2004 till 21.10.2005 with interest at the rate of 6% per annum to the petitioners within a period of three months from the date of the order failing which liberty was given to the petitioners to realize the same from him under due process of law.