The executing court cannot go behind the decree and must execute it as per its tenor, unless the decree is set aside by the competent court.

M URAHARI S RI R AMAN , J. — Assailing the Order dated 10.08.2022 passed by the learned Civil Judge, (Senior Division), Bhubaneswar in I.A. No.01 of 2018 (arising out of Execution Case No.40 of 2016), the petitioner approached this Court by way of filing this Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 .

2. It is unfurled from the pleadings and documents available on record that Special Civil Suit No.76 of 2014 was filed against the D.K. Enterprisers represented by its partners and same was decreed in favpur of the opposite party-Decree Holder (DHr). After registration of the Execution Case, being M.A.N.R.J.E Case No.34 of 2015, it was transferred from 3rd Jt. Civil Judge, Senior Division, Nagpur for execution of the decree.

3. The petitioner has filed an Interlocutory Application being I.A. No.01 of 2018 before the learned Civil Judge, (Senior Division), Bhubaneswar under Section 47 of the Code of Civil Procedure, 1908 (“CPC”, for brevity) Page 3 of 30 challenging the Execution Proceeding on the ground that notice was served on neither D.K. Enterprisers nor Sunita Agarwal or Ramavatar Sharma by the trial Court in connection with the Special Civil Suit No.76 of 2014. It was pleaded that the JDr after getting the information about the ex parte decree in the above noted suit contemplated steps for setting aside such ex parte judgement. It is alleged that the execution petition being completely silent about the proposed attachment of the property allegedly belonging to the JDr, the judgement and decree passed by the trial court was not enforceable.

3.1. Objecting to such pleading, the opposite party-DHr refuted the contention that no notice was served on the parties arrayed in the Special Civil Suit. The ground of attack against the judgment and decree could be raised at appropriate forum and vague allegation of fraud has been made by the petitioner-JDr. Any such irregularity should have been raised in the Special Civil Suit during the trial, but not by way of interlocutory application in the execution proceeding being Execution Case No.40 of 2016. It is, therefore, submitted by the DHr that the decree is neither a nullity nor unenforceable in the eye of law.

3.2. The opposite party-DHr claimed that he is entitled to recover the entire decretal amount of Rs.25,96,822/-with interest till the date of filing of the execution Page 4 of 30 petition. Therefore, it is stated that the interlocutory application filed at the behest of the petitioner-JDr under Section 47 , CPC was liable to be rejected.

4. The learned Executing Court at Bhubaneswar having considered the averments in the Interlocutory Application and objection thereto has come to decide the enforceability of decree, which was sought to be executed by the Court of the learned 3rd Jt. Civil Judge, Senior Division, Nagpur by way of transfer. Having taking into consideration, the relevant provisions and case laws, the Executing Court, i.e., the learned Civil Judge, (Senior Division), Bhubaneswar came to hold that, “In view of such settled principle of law so also the statutory provision itself vide Section 39 of CPC after a careful appreciation of the materials on record, it is found out that there is no defect at all in transfer of the execution by the Court of 3rd Jt. Civil Judge, Senior Division, Nagpur (Maharashtra) to this Court directly. Accordingly, the plea of petitioner/J.Dr regarding to non-

observation of the procedure to be followed is found to be without any basis.

*** There were every opportunities for the defendants under Order 9, Rule 13 of CPC to set aside the ex parte decree.

But instead of availing such recourses they have filed present petition under Section 47 of CPC in the execution proceeding.

Page 5 of 30 *** But in an interim application under Section 47 of the CPC such prayers are not to be entertained where there are specific forum for redressal of the grievance of the aggrieved parties. As such, it is being co