Bipin Bihari Biswal vs Prafulla Kumar Das ... Opposite Party on 29 July, 2025

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Orissa High Court

Bipin Bihari Biswal vs Prafulla Kumar Das ... Opposite Party on 29 July, 2025

Sashikanta Mishra,J. The Petitioner was the defendant in C.S. No.1691/2010 of the Court of Civil Judge (Sr. Division), Bhubaneswar and the judgment-debtor as per decree passed therein. In the present application he seeks to challenge the order C.M.P. No.747 of 2023 Page 1 of 12 dtd.9.2.2023 passed by the Court below in Execution Case No.3427/2022 filed by him.

2. The facts, relevant for deciding the present case, are that the present Opp.Party as plaintiff filed the aforementioned suit for specific performance of contract. Said suit was based on the claim that the defendant had executed an agreement to sell the suit land in favour of the plaintiff on 12.12.2004 upon receiving Rs.90,000/- as advance consideration. However, the defendant refused to execute the sale deed as promised by him despite several requests by the plaintiff and service of advocate's notice on him. On the contrary, the defendant filed Crl. Misc. Case No.731/2010 before the Court of A.D.C.P, Bhubaneswar, denying his liability in respect of the agreement. The plaintiff also came to know that the defendant is trying to sell the suit land to some other persons. On such fact, the suit was filed. The suit was contested and ultimately by judgment dtd.18.7.2016 followed by decree, was decreed in part by directing the defendant to refund the advance consideration money C.M.P. No.747 of 2023 Page 2 of 12 of Rs.90,000/- to the plaintiff along with P.I and F.I. at the rate of 18% per annum within two months. The defendant thereafter issued a notice to the plaintiff on 16.9.2016 informing him that he was ready to refund Rs.90,000/- without interest. According to the Opp.Party-decree-holder, the offer of the judgment debtor not being in consonance with the judgment dtd.18.7.2016, he did not accept the same.

3. The decree holder also preferred an appeal being R.F.A. No.72/2016 against the judgment and decree of the trial Court, but the same came to be dismissed by the appellate Court vide judgment dtd.13.9.2022. The decree-holder has filed a Second Appeal being R.S.A. No.300/2022 before this Court, which is pending. While the matter stood thus, the defendant-judgment debtor filed the aforementioned execution case on 02.12.2022 purportedly seeking to enforce the plaintiff to receive the consideration amount of Rs.90,000/- and to deliver physical possession of the suit property to the judgment-debtor. After hearing both sides, the court below by order dtd.9.2.2023 rejected the petition C.M.P. No.747 of 2023 Page 3 of 12 on the ground that the defendant had not paid the consideration money within the stipulated period fixed by the Court and accordingly, the execution case was rejected on the ground of limitation. Said order is impugned in the present application.

4. Heard Dr. Niranjan Swain, learned counsel for the defendant-judgment-debtor (Petitioner) and Mr. Shivsankar Mohanty, learned counsel for the decree-holder-plaintiff (Opp.Party).

5. Dr. Swain would argue that the judgment debtor has proved his bonafides by offering to pay the consideration amount to the plaintiff (decree-holder) but he refused on the ground that he had preferred First Appeal. Even after dismissal of the First Appeal, the decree holder avoided to receive the offer letter of the judgment-debtor. Finding no other way out the judgment-debtor filed the execution case seeking delivery of possession of the suit property upon receipt of the advance consideration amount by the decree- holder. The Court below has committed manifest error C.M.P. No.747 of 2023 Page 4 of 12 in rejecting the execution case on the ground of limitation, which is contrary to Article 138 of the Limitation Act which provides limitation of 12 years for filing execution of decree. Dr. Swain further argues that by the doctrine of merger, the judgment and decree of the trial Court merged with the judgment of the First Appellate Court in view of its dismissal on 13.9.2022. Therefore, the said date has to be reckoned for calculating the period of limitation. Dr. Swain further argued that the Court below has not considered the effect of the provision under Section 28 of the Specific Relief Act.

6. Per contra, Mr. Mohanty would argue that there is no provision for filing of execution case by a judgment- debtor as he cannot initiate any proceeding to execute the decree against himself. The plaintiff (decree-holder) rightly refused to accept the offer of the judgment- debtor as the same was without interest as directed in the decree. Mr. Mohanty further argues that reference to Section 28 of the Specific Relief Act by the judgment-debtor is misconceived because he has C.M.P. No.747 of 2023 Page 5 of 12 not filed any suit to rescind the contract and said provision applies only when there is an existing decree for specific performance which has not been complied with. The judgment-debtor, in the garb of filing the execution case cannot be permitted to claim delivery of possession of the suit land which was not a part of the original decree. On the point of limitation, Mr. Mohanty would argue that the decree passed being essentially a money decree, Article 137 applies which provides limitation of three years.

7. Having heard learned counsel for the parties at length, this Court deems it proper to first consider the maintainability of the execution case filed by the judgment-debtor. In this regard, the different provisions of Order XXI of C.P.C. are relevant. Rule 10 reads as follows;

"10. Application for execution.-Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court, then to such Court or to the proper officer thereof."

C.M.P. No.747 of 2023 Page 6 of 12

Thus, it is the holder of the decree who can apply to the Court for execution of the decree. There is no provision conferring such liberty on the judgment- debtor. Of course, the judgment-debtor, after passing of the decree directing him to pay any money, may come forward to pay the amount by giving notice as has been provided in Clause-2 of Rule 1 of Order XXI, which is reproduced below:

"(2).Where any payment is made under clause (a) or clause (c) of sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgement due."

8. It is also open to the judgment-debtor to pay the money to the decree-holder out of Court and inform the same to the concerned Court. In the instant case, the judgment-debtor is said to have offered to pay the amount in question to the decree-holder by issuing a notice to him, but the same was refused on the ground that it was not in consonance with the decree inasmuch as the interest part had not been included in his offer. Under such circumstances, the judgment- C.M.P. No.747 of 2023 Page 7 of 12 debtor could have resorted to the provision under Rule (1) by depositing the amount in the Court or as per direction of the Court that may be passed. Instead of doing so, the judgment-debtor filed an execution case, which as already stated, is not in terms of the provisions of Order XXI. It is stated at the cost of repetition that instead of filing an execution case, the judgment-debtor could have come forward to deposit the amount in the Court. In the petition filed for execution, the petitioner has claimed the following;

"Therefore in the circumstances, the defendant seeks the assistance of the Hon'ble Court to enforce the plaintiff to receive the advance consideration amount of Rs.90,000/- (Rupees Ninety Thousand) only from the J.Dr and to deliver the legal physical possession to the J.Dr.- defendant in respect of the schedule property described below. In view of the findings arrived at by the Hon'ble Courts, therefore the J.Dr. seeks that the possession be delivered forthwith upon receipt of the refund consideration amount to the tune of Rs.90,000/- (Rupees Ninety Thousand) only through process of the Hon'ble Court."

9. From a bare reading of the above, it is evident that in the garb of the execution proceeding, the C.M.P. No.747 of 2023 Page 8 of 12 judgment- debtor seeks a direction to the decree holder to deliver possession of the suit property to him. Be it noted that the trial Court did not issue any such direction in the decree but simply directed refund of the advance consideration amount along with interest. This Court would not offer any comment as the decree is presently under challenge before this Court in the Second Appeal preferred by the decree-holder. In view of what has been stated above, it is evident that the question of limitation becomes redundant. The proceeding itself is not maintainable and ought to have been rejected as such.

10. Coming to the other ground raised by the judgment- debtor that the provision under Section 28 of the Specific Relief Act permits such application. It would be apt to first refer to the said provision at the outset. Section 28 is reproduced below:

"28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.-(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the C.M.P. No.747 of 2023 Page 9 of 12 purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1), the Court-

(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and

(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. (3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:

(a) the execution of a proper conveyance or lease by the vendor or lessor;

(b) the delivery of possession, or partition and separate possession, of the property C.M.P. No.747 of 2023 Page 10 of 12 on the execution of such conveyance or lease.

(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.

(5) The costs of any proceedings under this section shall be in the discretion of the Court."

11. After reading the provision quoted, this Court fails to comprehend as to how the same applies to the facts of the present case particularly, when no decree for specific performance of contract was passed nor any suit filed for rescission of the contract. True, sub- section (3) permits the person directed to pay the money relatable to the contract to apply for delivery of possession, but in view of the language employed, the same entirely relates to the matter provided in sub- section (1) and hence, cannot be read in isolation. There is no provision permitting him to seek such relief by filing an execution case. This Court is therefore, of the considered view that reference to Section 28 of the Specific Relief Act is misconceived.

C.M.P. No.747 of 2023 Page 11 of 12

12. In the ultimate analysis, this Court holds that the execution case filed by the judgment debtor is not maintainable and ought to have been rejected as such. Nevertheless, the executing Court having rejected the execution case, albeit on other grounds, this Court finds no reason to interfere therewith. Of course, there is nothing in law to preclude the judgment- debtor from complying with the decree at any time in accordance with law.

13. In the result, this Court finds no merit in the CMP, which is dismissed.

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Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Jul-2025 10:55:15 C.M.P. No.747 of 2023 Page 12 of 12

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