SASMITA PATTANAIK Vs. SUNANDA PATTANAIK

JUDGEMENT

(1.) THIS is an application under Article 227 of the Constitution of India challenging the order dated 22.12.2007 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in CMA No.514 of 2007 arising out of Execution Case No.4 of 2007 rejecting the petitioners application on the ground that the petitioners had no locus standi to file petition under Section 151 of CPC as they were not parties to the execution proceeding nor was any decree going to be executed against them.

(2.) THE brief facts of the case are as follows : Opposite party No.1 -Sunanda Pattanaik along with one Sidhartha Pattanaik are the recorded landholders of Plot No.1202 measuring an area Ac.0.108 dec. under Khata No.1109 of Mouza Cuttack Town Unit No.22, P.S. Mangalabag. In the year 1994, Sidhartha Pattanaik tried to evict petitioner No.1 from the suit plot and failed. Thereafter, opposite party No.1 filed Civil Suit No.412 of 2003 against Sidhartha Pattanaik claiming that the entire suit land belonged to her. The said suit was a collusive one. In the suit, Sidhartha Pattanaik relinquished his entire share in favour of his sister -Sunanda Pattanaik (opposite party No.1). Opposite party No.1 filed Eviction Suit No.159 of 2003 against the present opposite party Nos.2 to 5 who are alleged to be residing in the suit premises. The said suit was decreed against opposite party Nos.2 to 5 who are the Judgment Debtors. Eviction warrant was issued against them to vacate the suit premises. At that time, the petitioners came to know about the execution proceeding and after due consultation, they filed an application under Order 1, Rule 10, CPC and another under Section 47 of CPC on an erroneous advise. Both the applications were rejected on 5.12.2007 on the ground that those were not maintainable. Thereafter a petition under Section 151 C.P.C. for recall of the order issued to give delivery of possession was filed by the petitioners stating therein that they were staying in the suit premises and if process server would evict them, they would suffer irreparable loss and injury. Said application was also rejected by the Executing Court on the ground as aforesaid.

(3.) LEARNED counsel for the petitioners submitted that as per Order 21, Rule 97 CPC, their application was to be investigated and the executing Court had to decide their right over the disputed property.