Upon hearing learned counsel for the parties, it is clear
that Col. 3 of the execution petition bears the date of the decree to be
23.12.1998. In fact, the date mentioned in Col. No. 3 of the
execution petition is the date of the judgment of the trial court in
O.S. No. 50 of 1983. In an execution proceeding, the date of the
decree means the date of the judgment as held in ILR 1950 (Cuttack
Series) 253. Thus, no exception can be taken to the date mentioned
in Col. 3 of the execution petition. The case of the petitioners is that
the decree holder-opposite party has put the decree of O.S. No. 50 of
1983 to execution, which has already been confirmed by the learned
District Judge, Khurda at Bhubaneswar in T.A. No. 8/7 of 2002/99.
Thus, applying the principles of doctrine of merger, it is the decree of
the first appellate court which should be executed and not the decree
of the trial court. Law is no more res integra on this issue as held in
the case of M/s. Gojer Brothers (P) Ltd. (supra). However, the
judgment debtors-petitioners have not raised any such objection in
their petition filed under Section 47 of the C.P.C. (I.A. No. 524 of
2010). The objection raised in the petition under Section 47 of the
C.P.C. has already been complied with and the matter has been set
at rest. Further, Order 21 Rule 17 C.P.C. casts an obligation on the
executing court to verify whether there is any defect in the execution
petition for non-compliance of the Rules 11 to 14 of Order 21 C.P.C.
If the Court finds any defect in the execution petition, it shall call
upon the decree holder to rectify the same either then and there or
grant some time to the decree holder for removal of the same. Such
power of the Court can be exercised at any stage of the execution
proceeding. The judgment debtors-petitioners cannot take advantage
of such non-compliance as their objection with regard to
maintainability of the execution proceeding can only be raised under 10
Section 47 of the C.P.C.
HIGH COURT OF ORISSA: CUTTACK
CMP NO. 404 OF 2016
Ghanashyam Pradhan and two others
Versus
Ram Pratap Kheria.
Date of Judgment: 11.04.2016
P R E S E N T:
SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2017(NOC) 38 Orissa
K.R. Mohapatra, J. The petitioners in this CMP assail the order dated
5.3.2016 passed by the learned Civil Judge (Senior Division),
Bhubaneswar in Execution Case No. 109 of 1999.
2. Order dated 5.3.2016 arises out of two petitions filed by
the judgment debtors-petitioners i.e. the petitions dated 25.6.2015
and 5.8.2015 under Annexures-5 and 6 respectively wherein the
petitioners prayed that the decree holder-opposite party may be
directed to correct/rectify the defects in execution petition and on
failure thereof to drop the execution proceeding.
3. Brief facts necessary for adjudication of this CMP are
stated hereunder:
O.S. No. 50 of 1983 was filed by the opposite partydecree
holder for declaration of his right, title and interest over ‘B’
and ‘C’ Schedule property and for eviction of the petitionersjudgment
debtor nos. 1 to 3 from ‘B’ Schedule property and for a
decree of eviction of petitioners-judgment debtor nos. 4, 6 and 8 from
‘C’ Schedule property of the suit. He also prayed for a decree for
permanent and prohibitory injunction. The suit was decreed vide
judgment dated 2.12.1998 on contest against the petitionersjudgment
debtor nos. 1 to 3 & 5 and ex parte against other judgment
debtors. Since the possession of the suit property was not delivered
to the decree holder within the time stipulated, Execution Case No.
109 of 199 was initiated. During pendency of the execution case, the
judgment debtor nos. 4, 6 and 8 delivered vacant possession of ‘C’
Schedule property to the decree holder. Thus, the execution case
continued as against the judgment debtor nos. 1 to 3 (present
petitioners). The judgment debtors (present petitioners) challenged
the judgment and decree passed in O.S. No. 50 of 1983 in T.A. No.
8/7 of 2002/99 in respect of ‘B’ Schedule property. The said Title
Appeal was dismissed on contest vide judgment and decree dated
17.7.2002 with a modification that the suit was decreed in presence
of defendant no. 5 with cost of appeal. Thus, the petitioners
approached this Court in RSA No. 118 of 2002. However, RSA No.
118 of 2002 was dismissed as withdrawn and the judgment and
decree passed in O.S. No. 50 of 1983 was accordingly confirmed.
Subsequently, the petitioners filed their objection to the execution
case under Section 47 of the C.P.C., which was registered as I.A. No.
524 of 2010 on the plea that the decree was not executable as the
suit Schedule ‘B’ property as described in the schedule of the decree
was non-existent. On hearing both the parties on merit,
objection/petition under Section 47 of the C.P.C. was rejected vide
order dated 13.4.2010 holding that the suit Schedule ‘B’ property is
identifiable and the decree was executable. The said order was
challenged by the petitioners before the learned District Judge,
Khurda at Bhubaneswar in CRP No. 8 of 2010. The said CRP was
also dismissed vide order dated 23.7.2010. Thus, the petitioners
approached this Court in W.P.(C) No. 21538 of 2010 assailing the
order passed in CRP No. 8 of 2010. The said writ petition was
disposed of vide order dated 21.7.2011 without interfering with the
impugned order. It was also directed therein that the learned trial
court shall correct the said decree by including the boundary of ‘B’
Schedule property within a period of two weeks from the date of
production of certified copy of the order before the said court. It was
further directed that on correction of the decree, the Executing Court
shall proceed with the execution for delivery of the possession of the 4
schedule ‘B’ properties to the decree holder by getting the same
measured as per the boundary along with some other consequential
direction.
4. Against the order dated 21.7.2011 passed in W.P.(C) No.
21538 of 2010, the petitioners preferred W.A. No. 421 of 2011, which
was disposed of vide judgment dated 10.4.2012 giving liberty to the
opposite party-decree holder to move an application seeking
amendment of the decree. Liberty was also granted to the petitionersjudgment
debtors to file their objection taking all such plea available
to them under law. Accordingly, an application for correction of the
decree of the trial court by incorporating the boundary of ‘B’
Schedule property was filed, which was allowed vide order dated
16.8.2012. The said order was challenged by the petitioners in
W.P.(C) No. 15717 of 2012, which was dismissed vide order dated
27.3.2014. Being not satisfied, the petitioners preferred W.A.
No. 123 of 2014, which was also dismissed vide order dated
8.5.2015. When the matter stood thus, the petitioners filed the
aforesaid two petitions for amendment of the execution case and in
the alternative to drop the execution proceeding. The opposite partydecree
holder filed his objection to the aforesaid two petitions
contending that the petitions being misconceived are not
maintainable in the eye of law. There is no cause of action to file
such petition and the same is otherwise barred by principles of res
judicata inasmuch as the petitioners are estopped in law to take
such a stand at that stage of execution proceeding. Reiterating the
factual aspects of the case, the opposite party contended that the
petitioners, who are judgment debtors, had filed a petition under
Section 47 of the C.P.C. raising certain objection which travelled up
to this Court in W.A. No. 421 of 2011 and the objection raised by the
petitioners were set at rest vide judgment dated 10.4.2012 passed in
the said writ appeal. Pursuant to the liberty granted by this Court in
W.A. No. 421 of 2011, the petitioners had already filed a petition
under Section 152 read with Section 151 C.P.C. for amendment of
the decree and the same was allowed. The petitioners had also
unsuccessfully challenged the said order of amendment of the decree
in W.P.(C) No. 15717 of 2012. The matter relating to the amendment
of the decree was set at rest in W.A. No. 123 of 2014 vide order dated
8.5.2015. Thus, it is not open to the petitioners to agitate their
grievances with regard to amendment of the execution petition again
at a belated stage. Thus, they prayed for dismissal of both the
petitions.
5. The learned trial court taking into consideration the rival
contentions of the parties and relying upon the case laws of both
Hon’ble Supreme Court as well as this Court rejected those petitions.
Hence, this CMP.
6. Mr. Sinha, learned counsel for the petitioners
vehemently submitted that when the decree of the trial court is
carried in appeal and the appeal is disposed of on contest, it is the
decree of the appellate court, which is to be executed and not that of
the trial court. He relied upon the decision at paragraph-15 in the
case of Gojer Brothers (P) Ltd. –v- Sri Ratan Lal Singh, reported in
AIR 1974 SC 1380, which reads as follows:
“15. In cases where the decree of the trial court is carried
in appeal and the appellate court disposes of the appeal
after a contested hearing, the decree to be executed is the
decree of the appellate court and not of the trial court. In
Jowad Hussain vs. Gendan Singh & Ors.,(1) the, Privy
Council while holding that the limitation of three years
within 'which an application for a, final decree must be
made runs from the date of the decree of the appellate court,
quoted with approval the statement of law contained in the
judgment of a learned judge of the Allahabad High Court to
the following effect : "When an appeal has been preferred, it
is the decree of the Appellate Court which is the final decree
in the cause".(2) The Privy Council also adopted the
statement contained in a judgment of Tudball J. to this
effect : "When the Munsif passed the decree it was open to
the plaintiff or the: defendant to accept that decree or to
appeal. If an appeal is preferred, the final decree is the
decree of the Appellate Court of final jurisdiction. When that
decree is passed, it is that decree and only that which can
be made final in the cause between the parties." Thus, when
the decree of the court of first instance is confirmed by the
High Court and the latter decree is confirmed by the Privy
Council the decree capable of execution is the decree of the
Privy Council.(3) In that case the decree passed by a District
Judge in 1887 awarded "future mesne profit" to the plaintiff.
That decree was reversed by the High Court but was
confirmed by the Privy Council on May 11, 1895. When the
matter came back in execution proceedings the Privy
Council held that the decree which the courts had to
execute was the one Passed by it in 1895 and since by that
decree the District Judge's decree- was confirmed, the
decree of 1895 clearly carried the mesne profits up to its
own date.”
The same view is taken by the Court in a decision reported in (1975)
41 CLT 438 (Ajoy Kumar Moharana Vs. Ghanashyam Moharana
and others), paragraph-5 of which reads as follows:
“5. Law is now well settled that where a trial Court
decree is reversed, modified or confirmed in appeal it is
the decision of the appellate authority which is operative
in law. The principle is simple and clear when the trial
Court decree is reversed or modified by the appellate
authority. The position is not in any way different when
the appellate Court decree is one of affirmance. The trial
Court decree merges in the appellate decision which alone
subsists and is capable of enforcement….”
7. Thus, Mr. Sinha submitted that it is the decree passed in
T.A. No. 8/7 of 2002/99, which is to be executed. He further
submitted that though the matter was carried to this Court in RSA
No. 118 of 2002 and the same having been withdrawn, no decree is
drawn up in RSA as per Rule 141 (11) of the G.R.C.O. Thus, the
decree of the first appellate court ought to have been put to
execution. He also submitted that in Col. 3 of the execution petition,
the date of the decree has not been stated and it is the date of the
judgment, which is reflected therein. Thus, the execution petition is
incompetent and the decree holder should be directed to amend the
execution petition and on failure thereof, the execution proceeding
should be dropped.
8. Mr. S.P. Mishra, learned Senior Advocate appearing for the
opposite party, per contra, submitted that the petitioners had filed their
objection to the execution case under Section 47 of the C.P.C., which
was registered as I.A. No. 524 of 2010. The said petition being
dismissed was carried to this Court and direction given in W.A. No. 421
of 2011 has already been carried out. No such objection with regard to
executability of the decree having been raised at any stage of the
execution proceeding, the same is deemed to have been waived.
Moreover, the objection raised at a belated stage is hit by principles of
res judicata. He further submitted that principle of res judicata is also
applicable to different stages of the same proceeding. He relying upon
the decision in the case of Gadadhar Mohapatra –v- Bisweswar
Bhutia, reported in 69 (1990) CLT 335, contended that it is the duty of
the executing court to see that the petition does not suffer from any
defect of non-compliance of the Rules 11 to 14 of Order 21 C.P.C. The
Court may, if it finds any defect in the execution proceeding, in its
discretion, direct the decree holder to rectify the same. When the
Executing Court in due discharge of its duty has not pointed out the
said defect in the execution petition, the judgment debtor cannot be
allowed to take advantage of it. Thus, he submitted that the judgment
debtor has no locus standi to raise any such objection at this stage.
The judgment and decree of the first appellate court passed in T.A. No.
8/7 of 2002/99 has already been filed and is available in the execution
case record. Thus, the executing court has considered the matter from
its proper perspective holding the defect to be trivial in nature and
ignored it. As such, the impugned order needs no interference.
9. Upon hearing learned counsel for the parties, it is clear
that Col. 3 of the execution petition bears the date of the decree to be
23.12.1998. In fact, the date mentioned in Col. No. 3 of the
execution petition is the date of the judgment of the trial court in
O.S. No. 50 of 1983. In an execution proceeding, the date of the
decree means the date of the judgment as held in ILR 1950 (Cuttack
Series) 253. Thus, no exception can be taken to the date mentioned
in Col. 3 of the execution petition. The case of the petitioners is that
the decree holder-opposite party has put the decree of O.S. No. 50 of
1983 to execution, which has already been confirmed by the learned
District Judge, Khurda at Bhubaneswar in T.A. No. 8/7 of 2002/99.
Thus, applying the principles of doctrine of merger, it is the decree of
the first appellate court which should be executed and not the decree
of the trial court. Law is no more res integra on this issue as held in
the case of M/s. Gojer Brothers (P) Ltd. (supra). However, the
judgment debtors-petitioners have not raised any such objection in
their petition filed under Section 47 of the C.P.C. (I.A. No. 524 of
2010). The objection raised in the petition under Section 47 of the
C.P.C. has already been complied with and the matter has been set
at rest. Further, Order 21 Rule 17 C.P.C. casts an obligation on the
executing court to verify whether there is any defect in the execution
petition for non-compliance of the Rules 11 to 14 of Order 21 C.P.C.
If the Court finds any defect in the execution petition, it shall call
upon the decree holder to rectify the same either then and there or
grant some time to the decree holder for removal of the same. Such
power of the Court can be exercised at any stage of the execution
proceeding. The judgment debtors-petitioners cannot take advantage
of such non-compliance as their objection with regard to
maintainability of the execution proceeding can only be raised under 10
Section 47 of the C.P.C. Admittedly, the objection as has been raised
under Annexures-5 and 6 were not raised by the petitionersjudgment
debtors in their petition under Section 47 of the C.P.C.
Thus, the petitioners have no locus standi to raise such an objection
at the fag end of the execution proceeding. It appears from the
impugned order that the decree holder-opposite party has already
filed the judgment and decree of the first appellate court, which is
available in the proceeding of the execution case record. The first
appellate court while confirming the decree passed in O.S. No. 50 of
1983 has only modified the same to the extent that the suit was
decreed in presence of defendant no. 5 and the cost of appeal. Thus,
the objections of the petitioners-judgment debtors are trivial in
nature and the same cannot stand on the way in executing the
decree. The execution proceeding has been instituted in the year,
1999 and the opposite party-decree holder is yet to enjoy the fruit of
the decree. Thus, while confirming the impugned order, this Court
disposes of the CMP with a direction that the executing court shall
examine the execution petition and shall do all needful to direct the
decree holder to amend the execution petition keeping in view the
ratio decided in the case of Gojer Brothers (P) Ltd. (supra), if the same
is necessary for execution of the decree.
………………………….
K.R. Mohapatra, J. Orissa High Court, Cuttack
Dated the 11th April, 2016.
that Col. 3 of the execution petition bears the date of the decree to be
23.12.1998. In fact, the date mentioned in Col. No. 3 of the
execution petition is the date of the judgment of the trial court in
O.S. No. 50 of 1983. In an execution proceeding, the date of the
decree means the date of the judgment as held in ILR 1950 (Cuttack
Series) 253. Thus, no exception can be taken to the date mentioned
in Col. 3 of the execution petition. The case of the petitioners is that
the decree holder-opposite party has put the decree of O.S. No. 50 of
1983 to execution, which has already been confirmed by the learned
District Judge, Khurda at Bhubaneswar in T.A. No. 8/7 of 2002/99.
Thus, applying the principles of doctrine of merger, it is the decree of
the first appellate court which should be executed and not the decree
of the trial court. Law is no more res integra on this issue as held in
the case of M/s. Gojer Brothers (P) Ltd. (supra). However, the
judgment debtors-petitioners have not raised any such objection in
their petition filed under Section 47 of the C.P.C. (I.A. No. 524 of
2010). The objection raised in the petition under Section 47 of the
C.P.C. has already been complied with and the matter has been set
at rest. Further, Order 21 Rule 17 C.P.C. casts an obligation on the
executing court to verify whether there is any defect in the execution
petition for non-compliance of the Rules 11 to 14 of Order 21 C.P.C.
If the Court finds any defect in the execution petition, it shall call
upon the decree holder to rectify the same either then and there or
grant some time to the decree holder for removal of the same. Such
power of the Court can be exercised at any stage of the execution
proceeding. The judgment debtors-petitioners cannot take advantage
of such non-compliance as their objection with regard to
maintainability of the execution proceeding can only be raised under 10
Section 47 of the C.P.C.
HIGH COURT OF ORISSA: CUTTACK
CMP NO. 404 OF 2016
Ghanashyam Pradhan and two others
Versus
Ram Pratap Kheria.
Date of Judgment: 11.04.2016
P R E S E N T:
SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2017(NOC) 38 Orissa
K.R. Mohapatra, J. The petitioners in this CMP assail the order dated
5.3.2016 passed by the learned Civil Judge (Senior Division),
Bhubaneswar in Execution Case No. 109 of 1999.
2. Order dated 5.3.2016 arises out of two petitions filed by
the judgment debtors-petitioners i.e. the petitions dated 25.6.2015
and 5.8.2015 under Annexures-5 and 6 respectively wherein the
petitioners prayed that the decree holder-opposite party may be
directed to correct/rectify the defects in execution petition and on
failure thereof to drop the execution proceeding.
3. Brief facts necessary for adjudication of this CMP are
stated hereunder:
O.S. No. 50 of 1983 was filed by the opposite partydecree
holder for declaration of his right, title and interest over ‘B’
and ‘C’ Schedule property and for eviction of the petitionersjudgment
debtor nos. 1 to 3 from ‘B’ Schedule property and for a
decree of eviction of petitioners-judgment debtor nos. 4, 6 and 8 from
‘C’ Schedule property of the suit. He also prayed for a decree for
permanent and prohibitory injunction. The suit was decreed vide
judgment dated 2.12.1998 on contest against the petitionersjudgment
debtor nos. 1 to 3 & 5 and ex parte against other judgment
debtors. Since the possession of the suit property was not delivered
to the decree holder within the time stipulated, Execution Case No.
109 of 199 was initiated. During pendency of the execution case, the
judgment debtor nos. 4, 6 and 8 delivered vacant possession of ‘C’
Schedule property to the decree holder. Thus, the execution case
continued as against the judgment debtor nos. 1 to 3 (present
petitioners). The judgment debtors (present petitioners) challenged
the judgment and decree passed in O.S. No. 50 of 1983 in T.A. No.
8/7 of 2002/99 in respect of ‘B’ Schedule property. The said Title
Appeal was dismissed on contest vide judgment and decree dated
17.7.2002 with a modification that the suit was decreed in presence
of defendant no. 5 with cost of appeal. Thus, the petitioners
approached this Court in RSA No. 118 of 2002. However, RSA No.
118 of 2002 was dismissed as withdrawn and the judgment and
decree passed in O.S. No. 50 of 1983 was accordingly confirmed.
Subsequently, the petitioners filed their objection to the execution
case under Section 47 of the C.P.C., which was registered as I.A. No.
524 of 2010 on the plea that the decree was not executable as the
suit Schedule ‘B’ property as described in the schedule of the decree
was non-existent. On hearing both the parties on merit,
objection/petition under Section 47 of the C.P.C. was rejected vide
order dated 13.4.2010 holding that the suit Schedule ‘B’ property is
identifiable and the decree was executable. The said order was
challenged by the petitioners before the learned District Judge,
Khurda at Bhubaneswar in CRP No. 8 of 2010. The said CRP was
also dismissed vide order dated 23.7.2010. Thus, the petitioners
approached this Court in W.P.(C) No. 21538 of 2010 assailing the
order passed in CRP No. 8 of 2010. The said writ petition was
disposed of vide order dated 21.7.2011 without interfering with the
impugned order. It was also directed therein that the learned trial
court shall correct the said decree by including the boundary of ‘B’
Schedule property within a period of two weeks from the date of
production of certified copy of the order before the said court. It was
further directed that on correction of the decree, the Executing Court
shall proceed with the execution for delivery of the possession of the 4
schedule ‘B’ properties to the decree holder by getting the same
measured as per the boundary along with some other consequential
direction.
4. Against the order dated 21.7.2011 passed in W.P.(C) No.
21538 of 2010, the petitioners preferred W.A. No. 421 of 2011, which
was disposed of vide judgment dated 10.4.2012 giving liberty to the
opposite party-decree holder to move an application seeking
amendment of the decree. Liberty was also granted to the petitionersjudgment
debtors to file their objection taking all such plea available
to them under law. Accordingly, an application for correction of the
decree of the trial court by incorporating the boundary of ‘B’
Schedule property was filed, which was allowed vide order dated
16.8.2012. The said order was challenged by the petitioners in
W.P.(C) No. 15717 of 2012, which was dismissed vide order dated
27.3.2014. Being not satisfied, the petitioners preferred W.A.
No. 123 of 2014, which was also dismissed vide order dated
8.5.2015. When the matter stood thus, the petitioners filed the
aforesaid two petitions for amendment of the execution case and in
the alternative to drop the execution proceeding. The opposite partydecree
holder filed his objection to the aforesaid two petitions
contending that the petitions being misconceived are not
maintainable in the eye of law. There is no cause of action to file
such petition and the same is otherwise barred by principles of res
judicata inasmuch as the petitioners are estopped in law to take
such a stand at that stage of execution proceeding. Reiterating the
factual aspects of the case, the opposite party contended that the
petitioners, who are judgment debtors, had filed a petition under
Section 47 of the C.P.C. raising certain objection which travelled up
to this Court in W.A. No. 421 of 2011 and the objection raised by the
petitioners were set at rest vide judgment dated 10.4.2012 passed in
the said writ appeal. Pursuant to the liberty granted by this Court in
W.A. No. 421 of 2011, the petitioners had already filed a petition
under Section 152 read with Section 151 C.P.C. for amendment of
the decree and the same was allowed. The petitioners had also
unsuccessfully challenged the said order of amendment of the decree
in W.P.(C) No. 15717 of 2012. The matter relating to the amendment
of the decree was set at rest in W.A. No. 123 of 2014 vide order dated
8.5.2015. Thus, it is not open to the petitioners to agitate their
grievances with regard to amendment of the execution petition again
at a belated stage. Thus, they prayed for dismissal of both the
petitions.
5. The learned trial court taking into consideration the rival
contentions of the parties and relying upon the case laws of both
Hon’ble Supreme Court as well as this Court rejected those petitions.
Hence, this CMP.
6. Mr. Sinha, learned counsel for the petitioners
vehemently submitted that when the decree of the trial court is
carried in appeal and the appeal is disposed of on contest, it is the
decree of the appellate court, which is to be executed and not that of
the trial court. He relied upon the decision at paragraph-15 in the
case of Gojer Brothers (P) Ltd. –v- Sri Ratan Lal Singh, reported in
AIR 1974 SC 1380, which reads as follows:
“15. In cases where the decree of the trial court is carried
in appeal and the appellate court disposes of the appeal
after a contested hearing, the decree to be executed is the
decree of the appellate court and not of the trial court. In
Jowad Hussain vs. Gendan Singh & Ors.,(1) the, Privy
Council while holding that the limitation of three years
within 'which an application for a, final decree must be
made runs from the date of the decree of the appellate court,
quoted with approval the statement of law contained in the
judgment of a learned judge of the Allahabad High Court to
the following effect : "When an appeal has been preferred, it
is the decree of the Appellate Court which is the final decree
in the cause".(2) The Privy Council also adopted the
statement contained in a judgment of Tudball J. to this
effect : "When the Munsif passed the decree it was open to
the plaintiff or the: defendant to accept that decree or to
appeal. If an appeal is preferred, the final decree is the
decree of the Appellate Court of final jurisdiction. When that
decree is passed, it is that decree and only that which can
be made final in the cause between the parties." Thus, when
the decree of the court of first instance is confirmed by the
High Court and the latter decree is confirmed by the Privy
Council the decree capable of execution is the decree of the
Privy Council.(3) In that case the decree passed by a District
Judge in 1887 awarded "future mesne profit" to the plaintiff.
That decree was reversed by the High Court but was
confirmed by the Privy Council on May 11, 1895. When the
matter came back in execution proceedings the Privy
Council held that the decree which the courts had to
execute was the one Passed by it in 1895 and since by that
decree the District Judge's decree- was confirmed, the
decree of 1895 clearly carried the mesne profits up to its
own date.”
The same view is taken by the Court in a decision reported in (1975)
41 CLT 438 (Ajoy Kumar Moharana Vs. Ghanashyam Moharana
and others), paragraph-5 of which reads as follows:
“5. Law is now well settled that where a trial Court
decree is reversed, modified or confirmed in appeal it is
the decision of the appellate authority which is operative
in law. The principle is simple and clear when the trial
Court decree is reversed or modified by the appellate
authority. The position is not in any way different when
the appellate Court decree is one of affirmance. The trial
Court decree merges in the appellate decision which alone
subsists and is capable of enforcement….”
7. Thus, Mr. Sinha submitted that it is the decree passed in
T.A. No. 8/7 of 2002/99, which is to be executed. He further
submitted that though the matter was carried to this Court in RSA
No. 118 of 2002 and the same having been withdrawn, no decree is
drawn up in RSA as per Rule 141 (11) of the G.R.C.O. Thus, the
decree of the first appellate court ought to have been put to
execution. He also submitted that in Col. 3 of the execution petition,
the date of the decree has not been stated and it is the date of the
judgment, which is reflected therein. Thus, the execution petition is
incompetent and the decree holder should be directed to amend the
execution petition and on failure thereof, the execution proceeding
should be dropped.
8. Mr. S.P. Mishra, learned Senior Advocate appearing for the
opposite party, per contra, submitted that the petitioners had filed their
objection to the execution case under Section 47 of the C.P.C., which
was registered as I.A. No. 524 of 2010. The said petition being
dismissed was carried to this Court and direction given in W.A. No. 421
of 2011 has already been carried out. No such objection with regard to
executability of the decree having been raised at any stage of the
execution proceeding, the same is deemed to have been waived.
Moreover, the objection raised at a belated stage is hit by principles of
res judicata. He further submitted that principle of res judicata is also
applicable to different stages of the same proceeding. He relying upon
the decision in the case of Gadadhar Mohapatra –v- Bisweswar
Bhutia, reported in 69 (1990) CLT 335, contended that it is the duty of
the executing court to see that the petition does not suffer from any
defect of non-compliance of the Rules 11 to 14 of Order 21 C.P.C. The
Court may, if it finds any defect in the execution proceeding, in its
discretion, direct the decree holder to rectify the same. When the
Executing Court in due discharge of its duty has not pointed out the
said defect in the execution petition, the judgment debtor cannot be
allowed to take advantage of it. Thus, he submitted that the judgment
debtor has no locus standi to raise any such objection at this stage.
The judgment and decree of the first appellate court passed in T.A. No.
8/7 of 2002/99 has already been filed and is available in the execution
case record. Thus, the executing court has considered the matter from
its proper perspective holding the defect to be trivial in nature and
ignored it. As such, the impugned order needs no interference.
9. Upon hearing learned counsel for the parties, it is clear
that Col. 3 of the execution petition bears the date of the decree to be
23.12.1998. In fact, the date mentioned in Col. No. 3 of the
execution petition is the date of the judgment of the trial court in
O.S. No. 50 of 1983. In an execution proceeding, the date of the
decree means the date of the judgment as held in ILR 1950 (Cuttack
Series) 253. Thus, no exception can be taken to the date mentioned
in Col. 3 of the execution petition. The case of the petitioners is that
the decree holder-opposite party has put the decree of O.S. No. 50 of
1983 to execution, which has already been confirmed by the learned
District Judge, Khurda at Bhubaneswar in T.A. No. 8/7 of 2002/99.
Thus, applying the principles of doctrine of merger, it is the decree of
the first appellate court which should be executed and not the decree
of the trial court. Law is no more res integra on this issue as held in
the case of M/s. Gojer Brothers (P) Ltd. (supra). However, the
judgment debtors-petitioners have not raised any such objection in
their petition filed under Section 47 of the C.P.C. (I.A. No. 524 of
2010). The objection raised in the petition under Section 47 of the
C.P.C. has already been complied with and the matter has been set
at rest. Further, Order 21 Rule 17 C.P.C. casts an obligation on the
executing court to verify whether there is any defect in the execution
petition for non-compliance of the Rules 11 to 14 of Order 21 C.P.C.
If the Court finds any defect in the execution petition, it shall call
upon the decree holder to rectify the same either then and there or
grant some time to the decree holder for removal of the same. Such
power of the Court can be exercised at any stage of the execution
proceeding. The judgment debtors-petitioners cannot take advantage
of such non-compliance as their objection with regard to
maintainability of the execution proceeding can only be raised under 10
Section 47 of the C.P.C. Admittedly, the objection as has been raised
under Annexures-5 and 6 were not raised by the petitionersjudgment
debtors in their petition under Section 47 of the C.P.C.
Thus, the petitioners have no locus standi to raise such an objection
at the fag end of the execution proceeding. It appears from the
impugned order that the decree holder-opposite party has already
filed the judgment and decree of the first appellate court, which is
available in the proceeding of the execution case record. The first
appellate court while confirming the decree passed in O.S. No. 50 of
1983 has only modified the same to the extent that the suit was
decreed in presence of defendant no. 5 and the cost of appeal. Thus,
the objections of the petitioners-judgment debtors are trivial in
nature and the same cannot stand on the way in executing the
decree. The execution proceeding has been instituted in the year,
1999 and the opposite party-decree holder is yet to enjoy the fruit of
the decree. Thus, while confirming the impugned order, this Court
disposes of the CMP with a direction that the executing court shall
examine the execution petition and shall do all needful to direct the
decree holder to amend the execution petition keeping in view the
ratio decided in the case of Gojer Brothers (P) Ltd. (supra), if the same
is necessary for execution of the decree.
………………………….
K.R. Mohapatra, J. Orissa High Court, Cuttack
Dated the 11th April, 2016.
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