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2017 DIGILAW 987 (ORI)

Jayadev Panda @ Tripathy v. Dillip Kumar Panda

2017-09-06

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This matter involves a challenge to the orders dated 10.8.2017 and 11.8.2017 passed involving Annexure-7 whereby the trial court rejecting the application of the petitioner filed for time to file objection, accepting the affidavit filed by the opposite party directed to issue the fresh writ to the Amin Commissioner to cause delivery of possession of the writ schedule property. 2. Bringing to the notice of this Court, the identification of schedule property appearing at different stages of the proceeding, firstly, disclosure of the identification in the plaint, secondly, a disclosure of the identification in the decree, thirdly, a disclosure in the identification in the execution proceeding, fourthly, disclosure of identification, vide Annexure-B and application filed by the opposite party during pendency of the execution proceeding and fifthly, an affidavit filed by the opposite party, the Dhr filed the following direction of the executing court dated 4.8.2017, Sri Mohanty, learned senior counsel for the petitioner submitted that for filing of an affidavit giving further disclosure of identification of the disputed property prima facie finding variance in the identification of the properties mentioned in the plaint and decree as well as in the execution petition, the Jdr. filed an application seeking time to file objection to the disclosure of the property by way of affidavit filed by the Dhr. This matter was taken up on 8.8.2017, on which date the execution proceeding was taken up and the Dhr. filed an affidavit with scheduled property, the case was next posted to 10.8.2017. On the said date, it appears, the Jdr. filed a time petition to file objection for the discrepancy in the identification of the property. On 10.8.2017 the executing court while rejecting the time petition seeking time to file objection by the Jdr. accepted the affidavit at the instance of the O.P.-Dhr. and directed for issue of fresh writ involving the property indicated in the affidavit. Challenging the impugned order, Sri Mohanty, learned senior counsel for the petitioner, submitted that since the case was posted to near dates, the client was not in a position to file his objection to the affidavit by 10.8.2017 and for the Jdr. finding discrepancy in the identification of the property, the matter should have been adjourned to one more date and final decision should have been taken after considering the objection of the Jdr. finding discrepancy in the identification of the property, the matter should have been adjourned to one more date and final decision should have been taken after considering the objection of the Jdr. Under the circumstance, Sri Mohanty, learned senior counsel prayed for setting aside the impugned order. 3. Sri Pattnaik, learned counsel for the opposite party objecting to the submission of the learned senior counsel for the petitioner submitted that for filing of the affidavit on disclosure of the identification of the property on asking of the court and since the court found infirmity in the description of the property by way of affidavit, it appears, there is no illegality in rejecting the application asking time for filing objection filed by the Dhr. and issuing necessary direction therein. 4. Considering the rival contentions of the parties and on perusal of the order-sheets right from 4.8.2017 till 10.8.2017, this Court finds, the executing court finding discrepancy in the disclosure of property following the execution proceeding and decree asked the Dhr. for filing an affidavit satisfying that the identification of the property in the execution proceeding tallies with the identification of the property in the decree. This Court observes that in the event of identification of the property indicated in the execution proceeding tallies with the identification of the property involving the decree, a simple affidavit could have been filed in one sentence that there is no difference in between the identification of the properties indicated in the execution proceeding and the matter should have been proceeded accordingly. Here perusal of the affidavit filed by the Dhr., this Court finds, instead of accepting the tallying of the property in the execution proceeding with the properties indicated in the decree, the Dhr. gave further details of the properties. For the further details of property, it was incumbent upon the executing court to give an opportunity of objection to the Jdr., admittedly when there were at least more than five materials already existed on the identification of the property and then to proceed to decide in accordance with law. For not providing opportunity of objection and further for the Dhr.’s filing a further disclosure of the property, this Court finds, there is no reason in rejecting the application for time to file objection and accordingly, this Court finds, there has been no opportunity of contest to the Jdr. For not providing opportunity of objection and further for the Dhr.’s filing a further disclosure of the property, this Court finds, there is no reason in rejecting the application for time to file objection and accordingly, this Court finds, there has been no opportunity of contest to the Jdr. Insofar as the affidavit filed by the Dhr. is concerned. As a consequence, the impugned order dated 10.8.2017 becomes bad. 5. Accordingly, this Court while interfering with the impugned order dated 10.8.2017 remands the matter back to the executing court with permission to the Jdr. to file objection to the affidavit of the Dhr. within a period of ten days hence and on consideration of the objection, if filed, the proceeding involving acceptance of affidavit will be concluded by the executing court within a further period of fifteen days thereafter. 6. The Civil Misc. Petition stands allowed but however with the observation made herein above. No cost.