HARIHAR DAS Vs. LALITA SAHOO AND OTHERS

JUDGEMENT

(1.) This petition challenges the order dated 8.3.2019 passed by the learned Civil Judge (Jr.Division), 1st Court, Cuttack in Execution Case No.2 of 2018 arising out of C.S.No.7262 of 2014. By the said order, learned executing court rejected the application of the J.Dr.-petitioner to stay the further proceeding of the execution case till disposal of C.S.No.1005 of 2017.

(2.) This case has a chequered history. The plaintiff- petitioner instituted C.S.No.7262 of 2014 before the learned Civil Judge (Jr.Division), 1st Court, Cuttack for permanent injunction restraining the defendants-opposite parties from evicting him from the suit house without due process of law. During pendency of the suit, a compromise was arrived at between the parties. Accordingly, they had filed an application on 6.1.2015 under Order 23 Rule 3 CPC for compromise. The suit was decreed in terms of the compromise on 7.1.2015. Thereafter the plaintiff instituted Civil Suit No.1005 of 2017 in the same Court seeking the self-same relief. The D.Hrs. levid Execution Case No.2 of 2018. The plaintiff filed an application under Rules 26 & 29 of Order 21 CPC to stay the further proceeding of the execution case till disposal of Civil Suit No.1005 of 2017. The D.Hrs. filed objection. Learned executing court rejected the petition holding inter alia that the J.Dr. has not assailed the compromise decree passed in C.S.No.7262 of 2014. The decree has attained finality. The D.Hrs. cannot be deprived of the fruits of litigation.

(3.) Mr.Ranjit Kumar Lenka, learned Advocate for the petitioner submits that the plaintiff is a tenant. He cannot be evicted without due process of law. Earlier suit was decreed in terms of the compromise. There is a clause in the compromise petition that "the present continuation of tenancy shall be completed on 31st December, 2017". Thereafter the plaintiff instituted C.S.No.1005 of 2017. Referring to Rules 26 & 29 of Order 21 CPC, he submits that further proceeding of the execution case shall remain stayed till disposal of C.S.No.1005 of 2017. He places reliance on a decision of the apex Court in the case of Bibekananda Bhowal (dead) by L.Rs. v. Satindra Mohan Deb (dead) by L.Rs, 1996 AIR(SC) 1985.