RAMAHARI ACHARYA Vs. KRUPASINDHU ACHARYA

JUDGEMENT

(1.) The order dated 19.4.2000 passed by the learned Civil Judge (Junior Division), Bhadrak in Execution Case No. 66 of 1995 is assailed by the petitioner.

(2.) OPPOSITE Party No. 1 as plaintiff filed T.S No. 174/1988. The said suit was decreed on 07.2.1995 and the defendants were directed to allow the plaintiff by way of mandatory injunction to go over their courtyard to thatch and repair the house during the thatching season as the plaintiff had got easementary/right of path by necessity. The trial Court rejected the prayer of the plaintiff to issue mandatory injunction to demolish the construction of the house of the defendants by themselves and also rejected the prayer to declare his right, title and interest over the 'Ka' schedule land.

(3.) HEARD learned Counsel for the parties at length. Perused the materials available. Admittedly earlier a petition filed under Order 21, Rule 32 C.P.C was rejected by the executing Court. Without taking note of the said fact the said Court by the impugned order dated 19.4.2001 allowed the petition and directed that the same to be read as a part of the execution petition filed earlier. Learned Counsel for the petitioner is right in stating that there was no such prayer by the decree holder. Be that as it may, the executing Court as would be evident from the order dated 19.4.2001, has not taken note of the fact that an earlier petition filed for self -same relief was rejected by the Court below and abruptly allowed the petition.