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
Print Page
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
