PARAMANANDA PANDA Vs. KRUSHNA CHANDRA PANDA

JUDGEMENT

(1.) Plaintiff is the petitioner and being aggrieved by the order dt. 19-10-1985 passed by the Subordinate Judge, Jajpur, refusing the plaintiffs prayer to stay the further proceedings of Execution Case No. 17 of 1984 has filed the revision.

(2.) The plaintiff filed the suit (T. S.140 of 1985) with the prayer that Schedule-B of the plaint schedule property be partitioned and for a declaration that the decree in Title Suit No. 16 of 1979 does not bind the plaintiff, on the allegation that defendant No. 11, Madan Mohan Panda had filed the earlier Title Suit No. 16 of 1979 in the Court of the Subordinate Judge, Jajpur, wherein the plaintiff's father was a party and obtained a decree therein by intentionally excluding the plaintiff from the suit and by exercising undue influence on his father and in the process the plaintiff was denied of his due share in the ancestral property. For course of the said suit, the plaintiff also filed in application for stay of execution case. No. 17 of 1984. Though the said application was styled to be an application under S.94 Civil P.C. but essentially the same is one under O.21, R. 29 of the Civil P.C. The learned Subordinate Judge came to the conclusion that the ratio indicated in the case of Judhistir v. Surendra, AIR 1969 Orissa, 238, had full application to the facts and circumstances of the present case and accordingly the prayer for stay of further proceedings of execution case was rejected. It is this order that is being assailed in this revision by the plaintiff.

(3.) Mr. Misra appearing for the-petitioner contends that as the petition in question was labelled as one under S.94 Civil P.C. the learned Subordinate Judge on that ground rejected the plaintiff's application and, therefore, the impugned order is vitiated. If the plaintiff's application for stay of further proceedings in the execution case would have been rejected solely on the ground as contended by the learned counsel for the petitioner, then there would have been no difficulty in interfering with the said order, since it is too well settled that a wrong labelling of an application cannot determine the issue and will not take away the jurisdiction of the court if actually the court has the jurisdiction under any provisions of the Code. But the impugned order, on the other hand, clearly indicates that the court below has considered the application as one under O.21, R. 29, Civil P. C. and held that such a prayer could not be granted in the facts and circumstances of the present case since according to the court below the provision under O.21, R.29 being of a very extraordinary nature it should be granted only when an extraordinary case is made out. The learned subordinate Judge has observed that since the plaintiff has not made out any extraordinary case, he is not entitled to the relief sought. In this view of the matter, the first contention of Mr. Misra has no substance and is accordingly rejected.