M/S. Bharat Motors, Cantonment Road, Cuttack-1, Represented Through Its Partners And Others vs Savitri @ Savitri Devi Bhawsinka And Others

Dr. A.K.Rath, J

This petition challenges the order dated 04.01.2018, passed by the learned Civil Judge (Senior Division), First Court, Cuttack in Execution No.25 of

2016, whereby, the application filed by the D.Hrs.-opposite parties under Order 6 Rule 17 CPC for amendment of the execution petition has been

allowed.

Bereft of unnecessary details, the short facts of the case are that plaintiffs-opposite parties instituted C.S. No.6785 of 2014 before the learned Civil

Judge (Senior Division), Cuttack, for eviction of defendants from the suit premises, delivery of possession, arrear house rent and damages with

interest. The suit was decreed. The defendants were directed to deliver vacant possession of the suit premises within three months, pay arrear rent of

Rs.40,000/- per month from November, 2013 to March, 2014 and damages @Rs.80,000/- per month from 1.4.2014 till delivery of vacant possession.

Decree was drawn up on 25. 06.2016. D.Hrs. levied Execution Case No.25 of 2016. Felt aggrieved, defendants filed RFA No.10 of 2016 before the

learned District Judge, Cuttack. Plaintiffs-respondents had filed cross-objection. The appellate court did not interfere with the finding of the learned

trial court except to the order pertaining to fair and equitable rent and modified the same to Rs.30,000/- instead of Rs.40,000/- per month from August,

2008 to October, 2013. The other findings of the trial court were affirmed. The cross-objection was dismissed. Consequent upon the modification of

the decree passed by the learned First Appellate Court, the D.Hrs. filed an application under Order 6 Rule 17 CPC for amendment of the execution

application to incorporate the mathematical calculation of the arrear rent. J.Drs. filed objection stating inter alia that the calculation made by the

D.Hrs. is erroneous. They have filed R.S.A. No.337 of 2017 before this Court assailing the judgment passed by the learned appellate court. The

application is premature.

By order dated 04.01.2018, the Executing Court allowed the application holding that the proposed amendment is essential for execution of the

decree. Mere filing of RSA No.337 of 2017 before this Court is not a ground to reject the amendment. No stay of further proceeding in the execution

case has been passed. The court is duty bound to calculate correctly the arrear house rent at the time of execution of the decree.

Heard Mr.P.K.Rath along with Mr.A.Behera, learned advocates for the petitioners and Mr.S.P.Mishra, learned Senior Advocate along with

Mr.S.Mishra, learned advocate for the opposite parties.

Mr. Rath, learned advocate for the petitioners submitted that the provision contained in Order 6 Rule 17 CPC has no application in a petition for

execution of the decree. The judgment passed by the learned First Appellate Court is assailed before this Court in RSA No.337 of 2017. The doctrine

of res sub-judice applies for which, the finality of the judgment passed by the learned First Appellate Court stands destroyed. The decree passed by

the courts below is stayed under the principle of res sub-judice and loses its finality. He placed reliance on the decisions in the case of Omprakash

Verma and others Vrs. State of Andhra Pradesh and others, (2010) 13 SCC 158 and D.R. Gupta Vrs. Steel Authority of India Limited, AIR 1985 Ori

224.

Per contra, Mr. Mishra, learned Senior Advocate submitted that the execution petition can be amended by invoking the provision contained in Order

21 Rule 17 CPC. There was a defect in the execution petition. The defect can be cured by filing an amendment petition subsequently. Decree passed

by the learned trial court was modified by the learned appellate court by judgment dated 30.06.2017. The proposed amendment was to incorporate the

mathematical calculation in accordance with the judgment of the appellate court. Though the application was filed under Order 6 Rule 17 CPC to

amend the execution petition, but the same is essentially a petition under Order 21 Rule 17 CPC. Only by use of a wrong nomenclature in that petition,

such power cannot be taken away. The petition was filed in time. He further submitted that the executing court has inherent power to allow the

application for amendment on the basis of change of facts, which occurred during proceeding and to avoid multiplicity of proceedings. The question of

applicability of the principle of res sub-judice is not applicable to the instant case. A decree of the court can be enforced in execution case, unless

stayed by the higher court. Mere filing an appeal does not operate as stay of the decree. The J.Drs. preferred RSA No.297 of 2017 before this Court,

but they withdrew the same on 08.09.2017. Thereafter, they filed RSA No.337 of 2017. No order of stay of further proceeding in Execution Case

No.25 of 2016 has been passed in the said case. Therefore, there is no impediment on the part of the executing court to proceed with the execution

case. Reliance has been placed on the decisions in the case of Ramankutty Guptan Vrs. Avara, (1994) 2 SCC 642, Ravinder Kaur Vrs. Ashok Kumar

& Another, AIR 2004 SC 904, Atma Ram Properties (P) Ltd. Vrs. Federal Motors (P) Ltd., (2005) 1 SCC 705, Satyabati Vrs. Rajinder Singh &

another, 2013 (II) OLR (SC) 585 and Harekrushna Harichandan Mohapatra Vrs. Dolgovinda Sahu, AIR 1964 Ori 182, 2005, Netramani Dibya and

others Vrs. Dasarathi Misra and others, AIR 1986 Orissa 235, Bhabatosh Sinha Vrs. Prava Sinha and others, AIR 2006 Ori. 7, and Ajit Singh @ Arit

Singh Chhabra Vrs. Anil Kumar Mishra, 2016 (I) OLR â€" 165.

Before proceeding further, it is necessary to refer to the provision contained in Order 21 Rule 17 CPC. Sub-rule 1 of Rule 17 of Order 21 CPC

provides:

“(1) On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule(2), the Court shall ascertain whether such of the requirements of

Rules 11 to 14 as may be applicable to the case have been complied with ; and , if they have not been complied with [the Court shall] the defect to be remedied then

and there or within a time to be fixed by it.

Rule 17 is a procedural provision and should be interpreted liberally. The executing court has ample power to allow amendment.

Taking a cue from Bhabatosh Sinha (supra), this Court in the case of Ajit Singh @ Arit Singh Chhabra (supra) held that if the court has power only

by use of wrong nomenclature in the petition, such power cannot be taken away. The duty of the court is to impart justice. The substance of the

petition matters, not nomenclature. Thus, in all intents and purposes, the petition for amendment has been filed under Order 21 Rule 17 CPC.

In Ramankutty Guptan (supra), the apex Court held that the decree of the appellate court would be construed to be the decree passed by the court

of first instance.

In Atma Ram Properties (P) Ltd. Vrs. Federal Motors (P) Ltd., (2005) 1 SCC 705, the apex Court held that mere preferring an appeal does not

operate as stay on the decree or order appealed against nor on the proceeding in the court below.

In Harekrushna Harichandan Mohapatra (supra), this Court held that the court has discretion to allow the amendment of execution petition under

Order 21 Rule 17 CPC.

In Netramani Dibya and others Vrs. Dasarathi Mishra and others, AIR 1986 Orissa 235 by invoking Sec.151 CPC, this Court has allowed the

application for amendment of the execution petition.

Reverting to the facts of this case and keeping in view the law laid down in the decisions cited supra, this Court finds that the suit was filed for

eviction of the defendants, arrear house rent and damages. The suit was decreed. The appellate court confirmed the decree of eviction, but modified

the arrear rent. Thereafter, the D.Hrs. filed an application under Order 6 Rule 17 CPC for amendment of the decree, instead of Order 21 Rule 17

CPC. Merely because the defendants have filed RSA No.337 of 2017 before this Court, the same is not per se a ground to reject the application for

amendment of the execution petition.

In D.R. Gupta, (supra), this Court held that the decision liable to appeal may be final within the meaning of Sec.11 CPC until an appeal is

preferred, but once an appeal is filed, the decision loses its character and finality and what was once res judicata again become subjudice, i.e. matter

under judicial enquiry. But in view of the decision of the apex Court in the case of Atma Ram Properties (P) Ltd. (supra), mere preferring an appeal

does not operate as stay of the decree or order appealed against, nor on the proceeding of the court below.

The conclusion is irresistible that if the decree passed by the learned trial court is modified by the appellate court, then the executing court has

ample power to amend the execution petition under Order 21 Rule 17 CPC.

In Omprakash Verma and others (supra), the apex Court referred to the earlier decision in the case of Gojer Bros. (P) Ltd. Vrs. Ratan Lal Singh,

(1974) 2 SCC 453, where it was held that the juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one

and the same time, more than one operative order governing the same subject-matter.

Therefore, the judgment of an inferior court, if subjected to an examination by the superior court, ceases to have existence in the eye of the law and is

treated as being superseded by the judgment of the superior court. In other words, the judgment of the inferior court loses its identity by its merger

with the judgment of the superior court. There is no quarrel over the proposition of law.

The second appeal has not been admitted till date. Even otherwise also, when the higher court stays further proceeding of the execution case, the

executing court has power to consider the interim application for amendment.

Before parting with this case, it is apt to refer to the decision of the Privy Council that about 150 years back, the Privy Council in the case of The

General Manager of the Raj Durbhunga under the Court of Wards Vrs. Maharajah Coomar Ramaput Sing, (1871-72) 14 MOO 1A 605 held :

“.....The difficulties of a litigant in India begin when he has obtained a decree.â€​

The same view was echoed in Ravinder Kaur and Satyawati(supra). The apex Court held that the Courts of Law should be careful enough to see

through the diabolical plans of the J.Drs. to deny the D.Hrs. the fruits of the decree obtained by them.

In the wake of the aforesaid, the petition sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall no order as to cost.

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