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2017 DIGILAW 251 (ORI)

Lova Ghadei v. Kuna Ghadei

2017-03-08

A.K.RATH

body2017
JUDGMENT : DR. A.K. RATH, J. 1. By this application under Article 227 of the Constitution of India challenge is made to the order dated 30.8.2014 passed by the learned Civil Judge (Sr. Divn.), Banpur in C.S. No.132/179 of 2014/2011. By the said order, learned trial court rejected the application of the defendants to stay the further proceeding of the suit till disposal of Consolidation Revision Case Nos.139/2011, 140/2011 and 141/2011 pending before the Commissioner of Consolidation, Orissa, Bhubaneswar. 2. The opposite parties as plaintiffs instituted the suit for partition of suit schedule property impleading the petitioners as defendants. Pursuant to issuance of summons, the defendants entered appearance and filed a written statement. While the matter stood thus, the defendants filed an application to stay the further proceeding of the suit till disposal of Consolidation Revision Case Nos.139/2011, 140/2011 and 141/2011 pending before the Commissioner of Consolidation, Orissa, Bhubaneswar. It is stated that the property involved in the suit as well as in revisions are same. The plaintiffs filed objection. Learned trial court rejected the application holding that the civil court has jurisdiction to decide the allegation of fraud. The consolidation revision was filed much after the institution of the suit. 3. Heard Mr. B.K. Nayak-1, learned counsel for the petitioners and Mr. K.B. Kar, learned counsel for the opposite parties. 4. The question does arise as to whether further proceeding in the suit shall remain stayed till disposal of Consolidation Revision Nos.139/2011, 140/2011 and 141/2011 on the file of the Commissioner of Consolidation, Orissa, Bhubaneswar? 5. In the case of Prahallad Bhol v. Shri Jagannath Mahaprabhu Bije Srikhetra Marfat Rajgoapl Ramanuj Das and another, (W.P.(C) No.4660 of 2005 disposed of on 28.8.2015), this Court held as follows:- “6. The subject-matter of dispute is no more res integra. In Jayadev Pradhan and others v. Managobinda Sathua, AIR 1967 Orissa 196, a suit was filed for declaration of title, confirmation of possession and permanent injunction. Both the parties claimed tenancy rights over the suit schedule land under the Orissa Estates Abolition Act. The Estate Abolition Officer recognized the title of the plaintiff. Assailing the same, the defendants had preferred an appeal, which was pending adjudication. An application was filed in the civil suit to stay the further proceeding till disposal of the O.E.A. Appeal. The said petition having been rejected, the matter came to this Court. The Estate Abolition Officer recognized the title of the plaintiff. Assailing the same, the defendants had preferred an appeal, which was pending adjudication. An application was filed in the civil suit to stay the further proceeding till disposal of the O.E.A. Appeal. The said petition having been rejected, the matter came to this Court. This Court held that for the ends of justice further proceeding in the suit should be stayed till disposal of the O.E.A. Appeal. The same view has been taken in Chandrasekhar Mohanty and others v. State of Orissa and others, 2007 (II) OLR 459 . 7. In P. Nirathilingam v. Annaya Nadar and others, AIR 2002 SC 42 there was a proceeding under the provision of the Tamil Nadu Debt Relief Act as well as civil suit for realization of mortgage amount. Referring to Section 5 of the Tamil Nadu Debt Relief Act and Sections 9 and 10 of the Civil Procedure Code, the apex Court held that further proceeding in the suit should be stayed till the Tahasildar disposes of the application filed by the debtor under the Tamil Nadu Debt Relief Act. 8. In the instant case, the matter in issue is substantially the same in the suit as well as in the O.E.A. Appeal. Though Section 10 CPC strictly has no application as held by the apex Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, 2004 AIR SCW 6900, but in view of the nature of dispute and the prayer made in the suit, it will be appropriate to stay the further proceeding in the suit till disposal of O.E.A. Appeal No.5 of 2001 in exercise of the jurisdiction under Section 151 CPC.” 6. The ratio of the aforesaid decision applies with full force to the facts of the case. The property involved in the suit as well as consolidation proceeding are same. In view of the same, the petition is disposed of with a direction to the Commissioner of Consolidation, Orissa, Bhubaneswar to dispose of Consolidation Revision Case Nos.139/2011, 140/2011 and 141/2011 within a period of three months from the date of production of a certified copy of the judgment. The further proceeding of the suit shall remain stayed till disposal of the Consolidation Revision cases. The petition is disposed of.