Orissa High Court
General Manager vs Harmohan Nayak & Ors. .... Opposite ... on 9 December, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 13-Dec-2025 12:56:39
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.605 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
General Manager, Canara Bank, .... Petitioners
Bhubaneswar & Ors.
-versus-
Harmohan Nayak & Ors. .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioners : Mr. S. Misra, Advocate
For Opposite Parties : Mr. N.K. Dash, Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th 9 December 2025 B.P. Routray, J.
1. Heard Mr. S.Misra, learned counsel for the Petitioners and Mr. N.K.Dash, learned counsel for Opposite Parties.
2. Present CMP is directed against impugned order dated 4th March 2025 of learned Civil Judge (Sr.Division), 1st Court, Cuttack passed in C.S.(I) No.868 of 2020, wherein the prayer of Defendants No.1 to 3 C.M.P. No.605 of 2025 Page 1 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 under Order 14 Rule 2 (2) was rejected to decide the question as a preliminary issue.
3. Present Opposite Parties are the Plaintiffs who filed the suit in C.S. No.868 of 2020 against the Bank Authorities praying for following reliefs:-
23. That the plaintiffs therefore pray :
(a) Let a decree be passed directing the defendants No. 1 to 3 / Bank to execute and register a sale deed in respect of the auctioned properties detailed in the sale notice dt. 10.10.2019 in favour of the plaintiffs at a price of Rs.20,32,500/-, minus an amount of Rs.
l,84,788/-( rupees one lakh eighty four seven hundred eighty eight only) which is the value of the stolen articles and electricity dues of Rs. 9,76,165/-.
(b) Let, a decree for permanent injunction be passed restraining the defendants No. 1 to 3/ Bank from forfeiting the amount already deposited as aforesaid and from holding any further auction in respect of the suit auctioned properties.
(c) Let a decree for refund of the amount deposited as aforesaid with interest be passed in the alternative if it is not directed that the defendants No. 1 to 3 are to execute the sale deed.
(d) Let any other or further decree to which the plaintiffs are found to be entitled be passed in their favour.
(e) Let the cost of the suit be decreed.
4. It is submitted on behalf of Mr. Misra, learned counsel for the Petitioners that earlier the Defendant-Bank had filed a petition under C.M.P. No.605 of 2025 Page 2 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 Order 7 Rule 11 of the CPC which was rejected by the learned Trial Court. The said order of the Trial Court was never challenged before higher forum.
5. After framing of issues, the Defendant -Bank filed another petition dated 29th November 2024 under Order 14 Rule 2 (2) of the CPC to decide the question of maintainability of the suit as a preliminary issue. According to Defendant- Bank the issue of maintainability being a pure question of law coming within the purview of Sub-clause(b) of Sub-rule 2 of Rule 2 of Order 14 should have been decided at the preliminary stage. But the learned Trial Court rejected such prayer mainly on the ground that it has already dealt with such prayer of Defendant -Bank under Order 7 Rule 11 petition.
6. Conversely, Mr. Dash, learned counsel for the Opposite Parties submits that a prayer which was rejected earlier on the same question of maintainability of the suit in terms of Order 7 Rule 11 of CPC, the same cannot be entertained at a later stage in a different form Viz.
Order 14 Rule 2 of the CPC. He further submits that the reliefs claimed by the Plaintiffs cannot come within the purview of Section 34 of the Securitisation and Reconstruction of Financial Assets and C.M.P. No.605 of 2025 Page 3 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 Enforcement of Security Interest Act, 2002 (herein after referred as Sarfaesi Act) being he is the auction purchaser for which the Civil Court is authorized to deal with.
7. Before delving further, it needs to be clarified here that this Court in the present proceeding is not authorized to enter upon the merits of contentions of the Defendant -Bank raised under Order 14 Rule 2 of the CPC. What needs to be seen here in the present case is that, whether the learned Trial Court has dealt with the objection of the Petitioners rightly under Order 14 Rule 2 of CPC.
Sub-rule 2 of Order 14 authorizes the Court, where issues both of law and fact arise in a suit, and the Court is of the opinion that the suit or any part thereof may be disposed of on an issue of law only. It may try that issue at the outset when it is relating to, first, the jurisdiction of the Court, and secondly, a bar to the suit created by any law for the time being in force. For the aforesaid purpose, if the Court thinks fit may postpone the settlement of other issues till such issue is determined and may deal with the suit in accordance with the decision arrived on that issue.
8. It is well-settled that a mixed question of law and fact cannot be decided as a preliminary issue and the Court can try such an issue as C.M.P. No.605 of 2025 Page 4 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 preliminary issue if it relates to the question of law as a bar to the suit created by any law for the time being in force.
9. In Sathyanath & Anr. vs. Sarojamani, (2022) 7 SCC 644, it has been held as follows:-
16. The matter has also been examined by this Court in a judgment reported as Ramesh B. Desai v. Bipin Vadilal Mehta [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638] wherein it was held as under : (SCC p. 650, para 13) "13. Sub-rule (2) of Order 14 Rule 2CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in S.S. Khanna v. F.J. Dillon [S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497] and it was held as under : (SCR p. 421) '***' Though there has been a slight amendment in the language of Order 14 Rule 2CPC by the amending Act, 1976 but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of C.M.P. No.605 of 2025 Page 5 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 law depends upon decision of fact, it cannot be tried as a preliminary issue."
17. This Court in Ramesh B. Desai [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638] held that the principles enunciated in S.S. Khanna [S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497] still hold good and the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue depends upon the question of fact, it cannot be tried as a preliminary issue. The said finding arises from the provision of Order 14 Rule 2 clauses
(a) and (b). After the amendment, discretion has been given to the court by the expression "may" used in sub-rule (2) to try the issue relating to the jurisdiction of the court i.e. territorial and pecuniary jurisdiction, or a bar to the suit created by any law for the time being in force i.e. the bar to file a suit before the civil court such as under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and numerous other laws particularly relating to land reforms.
Hence, if Order 14 Rule 2 is read along with Order 12 Rule 5, the court is expected to decide all the issues together unless the bar of jurisdiction of the court or bar to the suit in terms of sub-rule (2) clauses (a) and (b) arises. The intention to substitute Rule 2 is the speedy disposal of the lis on a question which oust either the jurisdiction of the court or bars the plaintiff to sue before the civil court.
18. We may state that the First Schedule appended to the Code contains the procedure to be applied in respect of the matters coming for adjudication before the civil court. Such procedure is handmaid of justice as laid down by the Constitution Bench judgment of this Court reported as Amarjit Singh Kalra v. Pramod Gupta [Amarjit Singh Kalra v. Pramod Gupta, C.M.P. No.605 of 2025 Page 6 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 (2003) 3 SCC 272] wherein it was observed as under : (SCC p. 300, para 26) "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice."
19. A three-Judge Bench in a subsequent judgment reported as Kailash v. Nanhku [Kailash v. Nanhku, (2005) 4 SCC 480] held that all rules of procedure are handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent but the object of prescribing procedure is to advance the cause of justice. The Court held as under : (SCC p. 495, paras 28-29) "28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar C.M.P. No.605 of 2025 Page 7 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 Sen v. State of Bihar [Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774] are pertinent : (SCC p. 777, paras 5-6) '5. ... The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.
6. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence -- processual, as much as substantive.'
29. In State of Punjab v. Shamlal Murari [State of Punjab v. Shamlal Murari, (1976) 1 SCC 719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that : (SCC p. 720) 'Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.' In Ghanshyam Dass v. Dominion of India [Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46] the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the C.M.P. No.605 of 2025 Page 8 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 cause of justice rather than to defeat it as all the laws of procedure are based on this principle."
20. This Court in Sugandhi v. P. Rajkumar [Sugandhi v. P. Rajkumar, (2020) 10 SCC 706 : (2021) 1 SCC (Civ) 116] held that if the procedural violation does not seriously cause prejudice to the adversary party, the courts must lean towards doing substantial justice rather than relying upon procedural and technical violations. It is not to be forgotten that litigation is nothing but a journey towards truth which is the foundation of justice and the Court is required to take appropriate steps to thrash out the underlying truth in every dispute. It was held as under :
(SCC pp. 708-09, para 9) "9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3)."
21. The provisions of Order 14 Rule 2 are part of the procedural law, but the fact remains that such procedural law had been enacted to ensure expeditious disposal of the lis and in the event of setting aside of findings on preliminary issue, the possibility of remand can be avoided, as was the language prior to the C.M.P. No.605 of 2025 Page 9 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 unamended Order 14 Rule 2. If the issue is a mixed issue of law and fact, or issue of law depends upon the decision of fact, such issue cannot be tried as a preliminary issue. In other words, preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the court or the bar to the suit is made out, the court may decide such issues with the sole objective for the expeditious decision. Thus, if the court lacks jurisdiction or there is a statutory bar, such issue is required to be decided in the first instance so that the process of civil court is not abused by the litigants, who may approach the civil court to delay the proceedings on false pretext.
22. In fact, in a judgment reported as A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam [A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430 : (2012) 3 SCC (Civ) 735] , this Court held as under :
(SCC p. 458, para 39) "39. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, at a later stage, but once discovered, it is the duty of the court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants."C.M.P. No.605 of 2025 Page 10 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication
Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39
23. The different judgments of the High Court referred to above are in consonance with the principles laid down by this Court in Ramesh B. Desai [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638] that not all issues of law can be decided as preliminary issues. Only those issues of law can be decided as preliminary issues which fell within the ambit of clause (a) relating to the "jurisdiction of the Court" and (b) which deal with the "bar to the suit created by any law for the time being in force". The reason to substitute Rule 2 is to avoid piecemeal trial, protracted litigation and possibility of remand of the case, where the appellate court differs with the decision of the trial court on the preliminary issues upon which the trial court had decided.
10. In the given facts of the present case, it is seen that the learned Trial Court in the impugned order has refused the prayer of the Defendant -Bank mainly on the ground that the Plaintiffs being the third party auction purchaser of the property from the Bank, the jurisdiction of the Civil Court is not barred under Section 34 of SARFAESI Act and secondly, the same as has already been refused in terms of the prayer under Order 7 Rule 11 of the CPC earlier, the Court is not required to decide the same again.
11. It needs to be clarified here that the proceeding of the Court under Order 7 Rule 11 is not the same as under Order 14 Rule 2 of the CPC in order to decide if there is bar to the suit created by any law.
The prayer under Order 7 Rule 11 is at the preliminary stage where C.M.P. No.605 of 2025 Page 11 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 nothing else other than the averments of the plaint and documents attached thereto can be looked into for the purpose of decision under Order 7 Rule 11. But in a case under Order 14 Rule 2 to decide a question of law as the preliminary issue, it is after the stage where the Defendants are allowed to file their defence and raise their objection to the averments made in the plaint. Thus while considering the prayer under Order 14 Rule 2 of the CPC, the Court can look into all such contentions and objections of the Defendant taking support from the statement of facts made in the written statement and documents produced by the Defendants. Thus it would incorrect to say that once a decision is taken under Order 7 Rule 11 on the same question of law, the same cannot be decided again under Order 14 Rule 2 of the CPC.
In this regard Hon'ble Supreme Court in Mathura Prasad Bajoo Jaiswal & Ors. vs. Dossibai N.B.Jeejeebhoy., 1970 (1) SCC 613, has explained that:-
10. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res C.M.P. No.605 of 2025 Page 12 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.C.M.P. No.605 of 2025 Page 13 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication
Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39
12. In Union of India & Anr. v. Association of Unified Telecom Service Providers of India., (2011) 10 SCC 543, it is stated that;-
60. In Chandrabhai K. Bhoir v. Krishna Arjun Bhoir [(2009) 2 SCC 315 : (2009) 1 SCC (Civ) 512] this Court relying on Chief Justice of A.P. v. L.V.A. Dixitulu [(1979) 2 SCC 34 : 1979 SCC (L&S) 99] , Union of India v. Pramod Gupta [(2005) 12 SCC 1] and National Institute of Technology v. Niraj Kumar Singh [(2007) 2 SCC 481 : (2007) 1 SCC (L&S) 668] has held:
(Krishna Arjun case [(2009) 2 SCC 315 : (2009) 1 SCC (Civ) 512] , SCC p. 322, para 26) "26. ... an order passed without jurisdiction would be a nullity. It will be a coram non judice [and] non est in the eye of the law. Principles of res judicata would not apply to such cases."
13. As stated above, in the instant case, the objection raised on the part of the Defendant -Bank is with regard to the maintainability of the suit as per the bar created by Section 34 of the Sarfaesi Act. Thus preliminarily it is seen that the question of maintainability in the suit as raised by the Defendant -Bank is a pure question of law and therefore, there should not have been any hesitation on the part of the Court to decide the same as a preliminary issue in terms of Order 14 Rule 2 (2)(b) of the CPC. It is made clear that this Court is not entering into the merits of the contentions of the parties with regard to their objections regarding maintainability of the suit or the question raised in respect of the same as per the provisions of the Sarfaesi Act C.M.P. No.605 of 2025 Page 14 of 15 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 12:56:39 or any other law. It is left open for the Trial Court to decide the merits of the issue of maintainability as raised by the Defendant -Bank. The finding of the Trial Court that it is not required to be decided again after the decision taken on the petition under Order 7 Rule 11 of the CPC is thus not correct and in such view of the question that, whether the purchaser would have the remedy under the Sarfaesi Act to be treated as a bar for maintaining the present suit is a question left open for the Trial Court to be decided afresh.
14. In view of the observations and discussions made above, the impugned order is set aside and the learned Trial Court is directed to decide the question of maintainability as a preliminary issue as per Sub-rule 2 of Rule 2 of Order 14 of the CPC as raised by the Defendant -Bank in their petition dated 29th November 2024 after giving due opportunity of hearing to both parties.
15. Accordingly, the CMP is disposed of.
(B.P. Routray) Judge S.Das/Sr.Steno C.M.P. No.605 of 2025 Page 15 of 15