NIRUPAMA SAMAL Vs. MAYABATI AGARWAL AND OTHERS

JUDGEMENT

(1.) This civil miscellaneous petition involves allowing an application under Order 41, Rule 27 of C.P.C read with Order 26, Rule 10 of C.P.C and U/s.151 of C.P.C. at the instance of the opposite parties.

(2.) Assailing the impugned order, Sri Patnaik, learned counsel for the petitioner referring to the pleadings made in the plaint as well as in the written statement involving the dispute with regard to identification of the property based with claim of plaintiff's possession over the plot nos.2571 & 2572 involved in the suit, further, referring to the additional issue nos.x & xi as framed by the trial Court and findings thereon by the trial Court in paragraph no.18 of the judgment passed involving the suit submitted that once the trial Court has sent a Commission in exercise of power under Order 26 Rule 10 of C.P.C and a report has also been submitted and taking into consideration that report a judgment and decree have already been passed, a party is debarred from claiming further exercise of power under Order 26 Rule 10 of C.P.C. in the pending appeal proceeding.

(3.) Sri Niranjan Panda-1, learned counsel for the opposite parties on the other hand, referring to the claim made by the opposite parties in the lower appellate Court in paragraph 5 and the discussions made by the lower appellate Court in paragraph 6 of the impugned order contended that for the claim involved therein and also the discussions therein, there was a justified claim for appointment of a further Survey knowing Commissioner to identify the property and thus, claimed that there has been right consideration of the aspect involved by the lower appellate Court requiring no interference in the same by this Court.