The main legal point established in the judgment is that the executing court has ample power to amend the execution petition under Order 21 Rule 17 CPC, and the substance of the petition matters, not nomenclature. The judgment also emphasized that mere preferring an appeal does not operate as a stay on the decree or order appealed against.

JUDGMENT :

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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 un