Orissa High Court
M/S. Shivom Minerals Limited vs M/S. Bajrang Metalics Limited on 16 April, 2025
ORISSA HIGH COURT : CUTTACK
C.R.P. No.20 of 2024
An application under Section 115 of the Code of Civil
Procedure, 1908.
***
M/s. Shivom Minerals Limited, Sundargarh
… Petitioner.
-VERSUS-
M/s. Bajrang Metalics Limited, Sundargarh
… Opposite Party.
Counsel appeared for the parties:
For the Petitioner : Mr. P.K. Rath, Sr. Advocate
assisted by Ms. S. Das, Adv.
For the Opposite Party : Mr. J.S. Chhabra, Advocate.
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERACRP No.20 of 2024 Page 1 of 16
Date of Hearing: 18.03.2025 :: Date of Judgment : 16.04.2025ANANDA CHANDRA BEHERA, J.–
1. This revision under Section 115 of the CPC, 1908 has
been filed by the petitioner (who was the petitioner in CMA No.3
of 2018) against the Opp. Party (who was the Opp. Party in
CMA No.3 of 2018) challenging an order of rejection to its CMA
No.3 of 2018 passed on dated 18.07.2022 by the learned First
Additional District Judge, Rourkela.
2. The factual backgrounds of this revision, which prompted
the petitioner for filing of the same is that, the Opp. Party in
this revision was the plaintiff in the suit vide C.S. No.166 of
2008 and the petitioner in this revision was the defendant in
the said suit.
That suit vide C.S. No.166 of 2008 of the plaintiff (Opp.
Party) was decreed in part as per its Judgment and Decree
dated 29.07.2016 and 12.08.2016 respectively directing the
defendant (petitioner) to remove his assets as per list furnished
CRP No.20 of 2024 Page 2 of 16
from the plant premises of the plaintiff at his own cost
forthwith.
3. On being dissatisfied with the said Judgment and Decree
dated 29.07.2016 and 12.08.2016 respectively passed by the
trial court in C.S. No.166 of 2008 against the defendant, the
defendant challenged the same by preferring the first appeal
vide R.F.A. No.30 of 2016 against the plaintiff before the
learned First Additional District Judge, Rourkela.
After hearing from both the sides, although the learned 1st
Appellate Court allowed that 1st Appeal vide R.F.A. No.30 of
2016 of the defendant in part as per its Judgment and Decree
dated 31.08.2017 and 14.09.2017 respectively and modified the
Judgment & Decree passed by the Trial Court and directed to
the defendant to remove his materials, equipments, fittings,
iron ores etc. stacked in the plant premises of the plaintiff
within two months hence, failing which, the plaintiff is entitled
to get it removed through process of Court at the cost of the
defendant and also directed to the defendant to pay Rs.5,000/-
per day as damages, if he (defendant) fails to remove the above
materials within two months.
CRP No.20 of 2024 Page 3 of 16
4. In obedience to the Judgment and Decree dated
31.08.2017 & 14.09.2017 respectively passed by the learned
first appellate court in R.F.A. No.30 of 2016, the defendant as
per its letter dated 07.12.2017 requested plaintiff to extend its
cooperation for obtaining necessary permission as per law from
the Mining Authorities for removal of the Iron Ores from the
suit premises, as the plaintiff is the owner of the suit premises,
to which, the plaintiff did not respond. So, the defendant as per
letter dated 21.12.2017 requested the Deputy Director, Mines,
Koira Circle, Koira for granting necessary permission as per law
for removal of the stacked iron ores from the suit premises.
After receiving said letter dated 21.12.2017, the Deputy
Director, Mines Koira Circle, Koira through its letter No.7449
dated 23.12.2017 directed both the plaintiff and defendant to
remain present on 27.12.2017 for joint verification of the
stacked iron ores in the suit premises, but, due to non-
cooperation of the plaintiff, joint verification could not be made
on 27.12.2017. For which, for the same purpose, another date
was fixed by the Mining Authorities to 03.01.2018, but the
plaintiff also did not cooperate for such joint verification on that
day i.e. on 03.01.2018. Then, the Deputy Director, Mines fixed
CRP No.20 of 2024 Page 4 of 16
the date to 05.01.2018 for the same purpose, but in the same
manner, the plaintiff did not cooperate for joint verification, for
which, joint verification could not be done.
The above letters including the letter dated 05.01.2018 of
the Deputy Director, Mines, Koira Circle, Koira are going to
show that, the plaintiff (Opp. Party) is not cooperating with the
Mining Authorities for joint verification of the suit premises for
the removal of the iron ores therefrom, as no specific direction
has been given in the Judgment and Decree passed in R.F.A.
No.30 of 2016 directing the plaintiff and the Mining Authorities
to render their necessary lawful assistance for removal of the
iron ores from the suit premises.
Only due to the above non-cooperation of the plaintiff
(Opp. Party), the defendant (petitioner) is not able to remove
about 36,000 metric tons stacked iron ores from the suit
premises of the plaintiff.
5. So, without getting any way, the defendant filed CMA No.3
of 2018 before the 1st Appellate Court under Section 114 read
with Order 47, Rule 1 of the CPC, 1908 praying for
insertion/inclusion/addition of some sentences in the ordering
portion of the Judgment of R.F.A. No.30 of 2016 passed by the
CRP No.20 of 2024 Page 5 of 16
learned First Appellate Court directing the Mining Department
to grant permission to the defendant (petitioner) to remove the
iron ores from the premises of the plaintiff (Opp. Party) within 2
months after the permission of the Mining Authorities.
6. To which, the Opp. Party (plaintiff) challenged by filing its
written objection stating that, the CMA of the defendant is in
the nature of an independent civil suit like mandatory
injunction after dismissal of the RFA No.30 of 2016, which is
not maintainable under law.
The defendant without taking any steps for complying the
directions of the 1st Appellate Court, has come with the review
petition, which is required to be dismissed with exemplary cost.
7. After hearing from both the sides, the learned First
Appellate Court dismissed the CMA No.3 of 2018 of the
defendant (petitioner) on contest as per its final order dated
18.07.2022 assigning the reasons that, the defendant is trying
for re-hearing of the appeal vide R.F.A. No.30 of 2016 through
the CMA, and the defendant is not able to point out any error
apparent on the face of the record or in the ordering portion of
the Judgment passed in R.F.A. No.30 of 2016, for which, the
CMA No.3 of 2018 filed by the defendant is not coming within
CRP No.20 of 2024 Page 6 of 16
the parameters of Section 114 read with Order 47 Rule 1 of the
CPC, 1908. So, there is no ground to review the Ordering
portion of the Judgment passed by the first appellate court in
R.F.A. No.30 of 2016.
8. On being dissatisfied with the said dismissal order passed
in CMA No.3 of 2018 on dated 18.07.2022 by the learned First
Appellate Court, the defendant challenged the same by filing
this Revision being the petitioner against the plaintiff arraying
it as Opp. Party praying for addition of some sentences in the
ordering portion of the Judgment of R.F.A. No.30 of 2016, for
making the said Judgment of the learned 1st Appellate Court
executable/workable under law.
9. I have already heard from the learned counsels of both the
sides.
In order to assail the impugned order passed by the
learned First Addl. District Judge, Rourkela, the learned
counsel for the petitioner relied upon the following decision:
In a case bettween Bhavan Vaja & Others Vs.
Solanki Hanuji Khodaji Mansang & Another
reported in (1973) 2 SCC 40.
CRP No.20 of 2024 Page 7 of 16
It appears from the Judgment and Decree passed by the
learned 1st Appellate Court in R.F.A. No.30 of 2016 that, about
36,000 metric tons of iron ores were stacked by the defendant
in the suit premises, in respect of which, direction was given by
the learned 1st Appellate Court to the defendant for its removal.
10. As per Section 4(1A) of the Mines And Minerals
(Development And Regulation) Act, 1957 along with Rule 10 of
the Orissa Minerals (Prevention of Theft, Smuggling & Illegal
Mining and Regulation of Possession, Storage, Trading and
Transportation) Rules, 2007 that,
“No person shall transport or store or cause to be
transported or stored any mineral otherwise than in accordance
with the provisions of this Act and the Rules made thereunder.”
Likewise, “any person who wishes to transport or remove
any mineral from any place, shall make an application complete
in all respect in Form H in duplicate to the Competent Authority
for issue of a permit as per the Orissa Minerals (Prevention of
Theft, Smuggling & Illegal Mining and Regulation of Possession,
Storage, Trading and Transportation) Rules, 2007.
11. Though, it is forthcoming from the records in R.F.A. No.30
of 2016 that, about 36,000 metric tons of iron ores have been
CRP No.20 of 2024 Page 8 of 16
stacked by the defendant inside the suit premises of the
plaintiff, but no direction has been given to the plaintiff as well
as Mining Authorities to render their necessary lawful
assistance for issuance of permit as per law in favour of the
defendant for the removal of the said huge quantity of stacked
iron ores from the suit premises of the plaintiff.
It was the case of the defendant in the CMA No.3 of 2018
that, the Opp. Party/plaintiff being the owner of the suit
premises (in which the iron ores have been stacked) is not co-
operating with the defendant for obtaining necessary permit as
per law from the Mining Authorities for the removal of the
stacked iron ores from its suit properties due to lack of any
direction in the ordering portion of the Judgment passed by
the learned 1st Appellate Court, and when, only due to the non-
cooperation of the plaintiff for that purpose, the
defendant/petitioner had approached the learned 1st Appellate
Court by filing CMA No.3 of 2018 praying for insertion of some
sentences in the ordering portion of the Judgment directing the
Mining Department to grant permission to the defendant to
remove the Iron Ores from the premises of the plaintiff (Opp.
CRP No.20 of 2024 Page 9 of 16
Party) within 2 months after the permission of the Mining
Authorities.
12. Section 21 of the Mines and Minerals (Development and
Regulation) Act, 1957 provides that,
“Whoever contravenes the provisions of sub-
section (1) or sub-section (1A) of section 4 shall
be punishable with imprisonment.”
13. The provisions of law envisaged in the Mines and Minerals
(Development and Regulation) Act, 1957 & Orissa Minerals
(Prevention of Theft, Smuggling & Illegal Mining and Regulation
of Possession, Storage, Trading and Transportation) Rules,
2007 provide that, “any mineral can never be transported or
removed without the necessary lawful permit of the Mining
Authority”.
14. In view of the above provisions of law envisaged in the
Mines and Minerals (Development and Regulation) Act, 1957 &
Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining
and Regulation of Possession, Storage, Trading and
Transportation) Rules, 2007, in order to execute/comply/carry
out/workout the directions made by the learned First Appellate
Court in the ordering portion of the Judgment passed in R.F.A.
No.30 of 2016 by the defendant, cooperation of the owner of the
CRP No.20 of 2024 Page 10 of 16
suit premises, i.e. plaintiff as well as the mining authorities for
issuance of necessary permit in favour of the defendant for the
removal of the stacked iron ores from the suit premises of the
plaintiff are very much essential.
15. When it has been stated on behalf of the defendant that,
due to the absence of any direction to the plaintiff as well as
Mining Authorities in the ordering portion of the Judgment
passed in R.F.A. No.30 of 2016, the plaintiff (owner of the suit
premises) is not co-operating with the Mining Authorities for
granting necessary permission in favour of the defendant for
the removal of the stacked iron ores from the suit premises,
then, at this juncture, the question arises,
“whether the learned First Appellate Court has
any power, authority or jurisdiction under law to
insert some sentences in the ordering portion of
the Judgment and Decree already passed by it in
R.F.A. No.30 of 2016 directing the plaintiff (Opp.
Party in this revision) as well as Mining Authorities
to render necessary lawful assistance for granting
necessary permission for the removal of the
stacked iron ores from the suit premises?”
CRP No.20 of 2024 Page 11 of 16
16. It is the settled propositions of law that, a decree or a
direction of a Court can be executed, only when, it is executable
in nature.
Unless a decree is executable in nature, the Court cannot
proceed to execute that decree. For which, the Court cannot
assume jurisdiction to execute the decree, which is in otherwise
non-executable.
Therefore, it is the responsibility of the Court to pass an
executable decree. Because, a non-executable decree is
beneficial to no party.
17. On this aspect the propositions of law has already been
clarified by the Apex Court in the ratio of the following
decisions:
I. In a case between A.R. Antulay Vs. R.S. Nayak
& Another reported in AIR 1988 (SC) 1531 that,
Review–Once it is realized that, a mistake had
been committed, it would not only be appropriate
but also the duty of the Court to rectify the mistake
by making review.
(Para No.20.3)
II. In a case between Vidya Devi Vs. The State of
Himachal Pradesh and Ors. reported in 2020 (1)
Civil Court Cases 718 (SC) that, in a case, where
the demand for justice is so compelling, a
constitutional Court would exercise its jurisdiction
with a view to promote justice, and not defeat it.
(Para No.10.7)
CRP No.20 of 2024 Page 12 of 16
18. As per the discussions and observations made above,
unless some sentences are added in the ordering portion of the
Judgment passed by the learned 1st Appellate Court in R.F.A
No.30 of 2016 directing the plaintiff and Mining Authorities to
provide their necessary lawful assistance for the grant of
permission under law in favour of the defendant for lifting the
stacked iron ores from the suit premises of the plaintiff, the
direction given by the learned First Appellate Court in the
Ordering portion of the Judgment of R.F.A. No.30 of 2016
cannot at all be executed/carried out/worked out practically.
For which, in order to make the direction given by the
learned First Appellate Court in its Judgment
executable/workable practically and lawfully, some sentences
are required to be added in the ordering portion of the
Judgment and Decree passed by the learned First Appellate
Court in R.F.A. No.30 of 2016 without altering the main
substratum and basic structures/intention/purpose/object of
that Judgment and Decree by applying the ratio of the aforesaid
decisions of the Apex Court, for no other reason, but only in
order to make the directions of the learned 1st Appellate Court
in its Judgment and Decree passed in R.F.A. No.30 of 2016
CRP No.20 of 2024 Page 13 of 16
executable/workable practically. Because, it is the duty of
every Court in India to make every Judgment
workable/executable or else the main object/purpose of
deciding the suit/appeal and proceeding shall be
frustrated/defeated.
19. As per the discussions and observations made above,
when, it is held that, some sentences are required to be added
in the ordering portion of the Judgment and Decree passed in
R.F.A No.30 of 2016 by the 1st Appellate Court for making that
Judgment and Decree executable/workable practically, then, at
this juncture, the total rejection of the CMA No.3 of 2018
passed by the learned First Appellate Court through the
impugned order cannot be sustainable under law.
For which, there is justification under law for making
some interference with the same through this revision filed by
the petitioner (defendant).
20. Therefore, there is some merit in the revision of the
petitioner. The same shall succeed in part.
21. In result, the revision filed by the petitioner is allowed in
part on contest, but without cost.
CRP No.20 of 2024 Page 14 of 16
22. The impugned Order dated 18.07.2022 passed in CMA
No.3 of 2018 by the learned First Additional District Judge,
Rourkela Court is set aside.
23. The matter i.e. CMA No.3 of 2018 is remitted back to the
learned First Appellate Court i.e. to the Court of learned First
Additional District Judge, Rourkela to consider the C.M.A. No.3
of 2018 afresh for insertion of some sentences as per law in the
ordering portion of the Judgment and Decree passed in R.F.A.
No.30 of 2016 as per the requirements under Mines and
Minerals (Development and Regulation) Act, 1957 & Orissa
Minerals (Prevention of Theft, Smuggling & Illegal Mining and
Regulation of Possession, Storage, Trading and Transportation)
Rules, 2007 for making the directions in the Judgment and
Decree passed in R.F.A. No.30 of 2016 by the learned 1 st
Additional District Judge, Rourkela for removal of the stacked
iron ores from the suit premises of the plaintiff
executable/workable practically.
24. The parties to this revision are directed to appear before
the learned First Additional District Judge, Rourkela on dated
25.04.2025 in C.M.A No.3 of 2018 in order to receive the
directions of the learned 1st Additional District Judge, Rourkela
CRP No.20 of 2024 Page 15 of 16
as to the further proceedings of C.M.A No.3 of 2018 on the
basis of the observations made in this Judgment for making the
Judgment and Decree passed in R.F.A. no.30 of 2016 by the
learned 1st Additional District Judge, Rourkela
executable/workable practically without altering/touching the
main substratum/structures/intention/purpose/object of that
Judgment and Decree.
25. The learned First Additional District Judge, Rourkela shall
dispose of the C.M.A No.3 of 2018 within a period of 1 month
positively from the date of appearance of both the parties after
giving opportunity of being heard to the parties.
26. Registry is directed to communicate this Order to the
learned 1st Addl. District Judge, Rourkela immediately.
(ANANDA CHANDRA BEHERA)
JUDGE
High Court of Orissa, Cuttack
The 16 .04. 2025// Rati Ranjan Nayak (RK)
Sr. Stenographer
Signature Not Verified
Digitally Signed
Signed by: RATI RANJAN NAYAK
Reason: Authentication
Location: High Court of Orissa, Cuttack, India.
Date: 17-Apr-2025 17:21:03
CRP No.20 of 2024 Page 16 of 16
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