IMPORTANT POINT
The judgment on appeal could not result in merger as there was no act of adjudication regarding the subject matter of the original decree or order.

JUDGMENT :

I.P. Mukerji, J.

1. This is an appeal by the judgment debtor. The opinion advanced by the appellant’s legal advisor may be erroneous or this court may not agree with it but it needs to be said that the grounds on which the application to resist the decree were maintained before the learned trial court were most novel and intriguingly interesting.

2. Under the terms of settlement on which a consent decree was passed on 21st May, 2002, strangely, construction of the building had to be completed on 31st May, 2002. In July 2005, an application for extension of time to inter alia complete the building under those terms was made by the respondents. This application was opposed by the appellant on inter alia the ground that the suit had resulted in a decree. This court did not retain the power to extend the time for performance of the decree.

3. The application was only argued on this point and became contested.

4. The court applied Section 148 of the Civil Procedure Code together with rule 46 of Chapter XXXVIII of the Original Side Rules which gave it power to extend the period of time fixed by it to do any act. On 11th July, 2005 the court allowed the application. On 18th July, 2005 this order was clarified by prescribing “six weeks from the date thereof” for completion of the building.

5. Aggrieved, the appellant preferred an appeal before a division bench of this court. It was dismissed on 16th October, 2007 by a reasoned judgment.

6. In the third column of the tabular statement in the execution application (EC NO.220 of 2014) taken out by the respondents to enforce this consent decree, where there is provision for the date of the decree, their advocate had inserted 21st May, 2002, as the date of the consent decree.

7. Mr. Sakya Sen, learned advocate appearing for the appellant submits that the original consent decree had merged with the subsequent order dated 11th July, 2005. Thereafter, both these pronouncements of the court had merged in the judgment and order of the division bench dated 16th October, 2007. Hence the decree to be executed was one dated 16th October, 2007. Thus, the date of the decree in the tabular statement was wrong, the execution application was defective, not maintainable and had to be dismissed.

8. Now if this point of the appellant judgment debtor was to succeed, then the execution application would have to be dismissed. A further execution application would not be maintainable, being barred by the laws of limitation.

9. Some provisions of the Civil Procedure Code and the Original Side Rules of this court have now to be looked into.

10. Usually, the decree is executed by the court which passed the decree.

11. Where the decree has been passed on appeal, the court of the first instance is taken as the court which passed the decree. (See Sections 37 and 38 of the Code). In Order 21 Rule 11(2) of the Code it is provided that an application for execution of the decree shall be by a written application where amongst other things the date of the decree is to be mentioned. Under sub-section (3) the applicant is to produce a certified copy of the decree.

12. The most crucial provision is Order 21 Rule 17 which says that on receiving an application for execution of the decree the court shall verify whether the requirements of Order 21 Rule 11 sub-section (3) have been complied with. If it finds that there is non-compliance “the court shall allow the defect to be remedied” “then and there” or within the time to be fixed by it.

13. Chapter XVII of the Original Side Rules of this court contains a heading under Rule 9: Generally: Execution Proceedings in the Calcutta High Court. It says that the application would be in Form-1 and that a certified copy of the decree is to accompany the application in all cases. Form-1 contains the tabular statement. The third column refers to the date of the decree.

14. Even the Original Side Rules do not say that for any mistake in the date of the decree in the tabular statement, the exec