Execution Petition No. 1 of 2012 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.583 of 2023 (An application under Article 227 of the Constitution of India) --------------- M/s. Bhatta Hardware Agency, Angul ….... Petitioner -Versus- Goodlass Nerolac Paints Ltd., Cuttack ..…. Opp. Party Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : Mr. Sudheer Kumar Sahoo, Advocate For Opp. Party : Mr. Lakshman Mishra, Advocate ___________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA J U D G M E N T 4thof September, 2025 SASHIKANTA MISHRA, J. In the present application filed under Article 227 of the Constitution of India, the petitioner seeks to challenge the order dated 26.07.2022 passed by the learned 2nd Additional Civil Judge (Senior Division), Cuttack, in Page 1 of 8 Execution Petition No.1 of 2012 in dropping the said proceeding on the point of jurisdiction. 2.
Legal Reasoning
The petitioner was defendant in T.S. No.245 of 1989, which was filed by the plaintiff against him in the Court below for realization of an amount of Rs.1500/-. The defendant filed written statement challenging the maintainability of suit on the point of territorial jurisdiction and also filed a counter-claim to direct the plaintiff to supply goods as per the order placed or in the alternative to refund the advance amount of Rs.20,000/- along with interest. 3. The trial Court, vide judgment dated 31.07.2001 decreed the suit and dismissed the counter-claim by holding that the plaintiff is entitled to recover the amount of Rs.1452.32 paisa from the defendant and that the defendant had not paid Rs.20,000/- under acknowledgement. 4. The defendant filed two appeals being, Title Appeal No.2 of 2002 and Title Appeal No.3 of 2002 before the District Court. By judgment passed on 29.04.2004 followed by decree, the Appellate Court, being learned Page 2 of 8 Adhoc Additional District Judge, FTC-1 allowed both the appeals by holding that the suit is not maintainable at Cuttack but allowed the counter-claim directing the plaintiff to supply the goods in question to the defendant. 5. The plaintiff did not further question the judgment passed in the appeals but also did not comply with the decree. As such, the defendant lodged an execution case for execution of the decree passed in respect of the counter-claim. The Executing Court observed in the impugned order that the Appellate Court held that the suit having been instituted at Cuttack is not maintainable as the trial Court had no territorial jurisdiction and thereafter, applying the doctrine of merger, concluded that there is no cause of action to institute the suit and hence, the question of execution of judgment and decree dated 31.07.2001 and 13.08.2001 does not arise at all. The execution proceeding was thus, dropped on the point of jurisdiction by observing that the defendant may pursue his remedy at Angul to get the decretal amount in the counter-claim preferred by him as per the direction in Title Appeal No.2 of 2002. Page 3 of 8 6.
Legal Reasoning
Heard Mr. S.K. Sahoo, learned counsel for the Defendant-Petitioner and Mr. L. Mishra, learned counsel appearing for the Plaintiff-Opposite Party. 7. Mr. Sahoo would argue that the Executing Court has committed manifest illegality in dropping the execution proceeding on the point of jurisdiction relying only on the order of dismissal of the suit on the point of territorial jurisdiction but it has completely ignored the decree passed in the counter-claim filed by the defendant. The cause of action for the counter-claim arose entirely within the territorial jurisdiction of the Court at Cuttack and therefore, the decree can be executed at Cuttack. 8. Mr. Mishra, learned counsel appearing for the Plaintiff-Opposite Party fairly submits that the doctrine of merger referred to by the executing Court is not applicable. He further fairly submits that the counter- claim is like an independent suit, which can proceed even after the original suit has been dismissed. 9. Before adverting to the rival contentions raised, reference to a few statutory provisions would be in order at the outset. Page 4 of 8 Order 8 Rule 6-A provides for setting up a counter- claim by the defendant in respect of a cause of action accruing to him against the plaintiff. Rule 6(D) being relevant is reproduced herein below:- “If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed the counter-claim may nevertheless be proceeded with.” 10. Thus from plain reading of the above provision it is clear that the counter-claim can proceed independent of the suit irrespective of it being stayed, discontinued or dismissed. In the instant case, the suit filed by the plaintiff was ultimately dismissed for want of territorial jurisdiction of the Court as it was found that no part of the cause of action had arisen within its territorial jurisdiction. The counter-claim was however, decreed. Since an executable decree was passed but was not complied with by the judgment debtor, in the instant case, the plaintiff, the defendant-decree holder was entitled to seek its execution by lodging an execution case. Order 21 Rule 10 reads as follows:- “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) Page 5 of 8 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.” 11. Such an application was filed by the defendant. The Executing Court referred to the observation made by the Appellate Court with regard to the absence of cause of action for the suit of the plaintiff resulting in finding that the suit at Cuttack was not maintainable. Interestingly, the Executing Court did not whisper a word as regards the decree passed by the Appellate Court with regard to the counter-claim, which was allowed. The finding relating to the territorial jurisdiction was rendered by the Appellate Court only with regard to the plaintiff’s suit and not the counter-claim, meaning thereby that the counter-claim was maintainable before the Court at Cuttack. This aspect appears to have escaped the attention of the executing Court completely. 12. The Executing Court has referred to the doctrine of merger without specifying as to how the same is applicable to the facts of the case. As regards the doctrine, in the case of State of Madras v. Madurai Mills Co. Page 6 of 8 Ltd.,1966 SCC Online SC 140, the Supreme Court held as follows:- “The doctrine of merger is not a doctrine of rigid and it cannot be said that universal application and wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. It was observed that the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.” 13. Thus, assuming that the Executing Court was referring to a situation where the decree passed by the trial Court merged with a decree of the Appellate Court, it still does not stand to reason as to how the same precludes the defendant-decree holder from executing his decree passed in respect of his counter-claim to be enforced at Cuttack. 14. Having regard to the position of law that the counter-claim can proceed independently of the suit, dismissal of the suit would have no bearing on the counter claim at all. In the instant case, the suit was held not maintainable for want of territorial jurisdiction but the counter-claim was certainly maintainable. Page 7 of 8 15. Thus, dropping the execution proceeding in respect of the counter-claim on the ground of dismissal of the suit for want of territorial jurisdiction cannot be countenanced in law. This Court is of the considered view that the Executing Court not having examined the legal aspects mentioned in this judgment, the impugned judgment is rendered unsustainable in the eye of law. 16. For the foregoing reasons therefore, the CMP is allowed. The impugned order is set aside. The Executing Court is directed to proceed with the execution proceeding in accordance with law. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 4th of September, 2025/ P. Ghadai, Jr. Steno Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 04-Sep-2025 18:15:47 Page 8 of 8