Orissa High Court
Gurjeet Singh And Others vs Kamal Dev Sharma And Others on 26 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1046 of 2022
Gurjeet Singh and others Petitioners
Mr. Avijit Patnaik, Advocate
-versus-
Kamal Dev Sharma and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 26.10.2022
1. 1. This matter is taken up through hybrid mode.
2. Petitioners in this CMP seek for a direction to drop the
Execution Case No.138 of 2021 arising out of judgment and
decree passed by learned Civil Judge (Senior Division),
Champua in CS No.56 of 2009.
3. Mr. Patnaik, learned counsel for the Petitioners submits
that CS No.56 of 2009 was filed against the present Petitioners
for a decree of recovery of money along with interest and
compensation. The suit was decreed by learned trial Court on 3rd
September, 2016 directing the Petitioners to refund
Rs.12,68,00,000/- along with interest and damages etc. The
decree was subsequently transferred to the Court of Civil Judge
(Senior Division), Mohali and is pending in Execution Case
No.138 of 2021. As the suit was decreed ex-parte, Petitioners
have already filed CMA No.164 of 2021 under Order IX Rule 13
CPC for setting aside the ex-parte decree, which is pending for
adjudication. Relying upon the decision in the case of
Rajkishore Das Vs. Nilamani Das, reported in AIR 1968 Ori.
// 2 //
140, Mr. Patnaik, learned counsel for the Petitioners submits that
transferee Court has no jurisdiction to entertain any application
except executing the decree. He verily relied on para-18 of said
judgment in Rajkishore Das (supra), which reads thus:-
"18. The decisions cited by the plaintiff-petitioner deal
with limitation of the power of the executing Court to go
behind the decree, while executing it and clearly enunciate
that the validity of the decree cannot be challenged though
its execution can be refused on the ground that it is null
and void and its terms can be construed but not considered
on its merits. There is no dispute about the correctness of
these principles enunciated in those decisions which are of
the Supreme Court as well as of other High Courts in India.
None of those decisions, however, says that merely because
it is executing the decree, the Court loses its jurisdiction to
entertain an application under Order 9, Rule 13 C. P. C.
which is specially conferred on it as the Court in which the
decree was passed. If the executing court was a transferee
court, it would, by statutory provision, have the jurisdiction
only to execute the decree, but it would not acquire the
entire jurisdiction of the Court which passed the decree.
That would be because the transferee court will not be the
court which passed the decree within the meaning of
Section 37, CPC. In the instant case the Subordinate Judge
while entertaining the application under Order 9, Rule 13
was discharging its function within the limits of its
jurisdiction as the Court which passed the decree.
Therefore. I see no considerable legal impediment to hold
that the Court can treat an application under Section 47, as
one under Order 9 Rule 13 and dispose it of on that
footing."
He, therefore, submits that Petitioners are at present remediless
to stay execution of the decree during pendency of the petition
under Order IX Rule 13 CPC. It is his submission that
application under Order IX Rule 13 CPC can also be treated as a
petition under Section 47 CPC and the executing Court has
jurisdiction to entertain the same and pass orders thereon. Mr.
Patnaik, learned counsel for the Petitioners also submits that the
Petitioners have already brought to the notice of the executing
// 3 //
Court about pendency of the petition under Order IX Rule 13
CPC. Thus, finding no other alternative, Petitioners have filed
this CMP with the aforesaid prayer.
4. Upon hearing learned counsel for the Petitioners and on
perusal of case record as well as case law cited, it is apparent
that the Petitioners have never approached the executing Court
to stay the execution proceeding for a particular period to obtain
an interim order to protect their interest. Order XLI Rule 26 (1)
CPC takes care of the interest of the Petitioners. Since the
Petitioners have not filed any application for stay of the
execution proceeding stating the facts, as aforesaid, this Court is
not inclined to entertain the same in exercise of power under
Article 227 of the Constitution. Further, no ground is made out
to drop the Execution Proceeding No.138 of 2021 in this CMP.
The case law cited by learned counsel for the Petitioners clearly
stipulates that there is no legal impediment to treat an
application under Section 47 CPC as one under Order IX Rule
13 CPC. Thus, the same is not applicable to the case at hand.
Therefore, this Court is not inclined to entertain the prayer made
in the CMP.
5. Accordingly, the CMP being devoid of any merit, stands
dismissed. However, it is open to the Petitioners to work out
their remedy in accordance with law.
(K.R. Mohapatra)
Judge
s.s.satapathy
