Execution proceedings cannot be initiated by a judgment debtor against themselves under the CPC.

JUDGMENT :

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 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 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 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 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 h