Orissa High Court
Bipin Bihari Biswal vs Prafulla Kumar Das … Opposite Party on 29 July, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.747 of 2023
(Application under Article 227 of the Constitution of India)
Bipin Bihari Biswal ... Petitioner
-versus-
Prafulla Kumar Das ... Opposite Party
Advocates appeared in the case through hybrid mode:
For Petitioner : Dr.Niranjan Swain,
Advocate.
-versus-
For Opposite Party
: Mr. Shivsankar Mohanty
Advocate
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
29.7.2025.
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 theC.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 propertyC.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.
…………………………..
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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