IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.583 of 2023

(An application under Article 227 of the Constitution of India)

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M/s. Bhatta Hardware Agency, Angul

….... Petitioner

-Versus-

Goodlass Nerolac Paints Ltd., Cuttack

..…. Opp. Party

Advocate(s) appeared in this case:-

_______________________________________________________ For Petitioner : Mr. Sudheer Kumar Sahoo, Advocate

For Opp. Party : Mr. Lakshman Mishra, Advocate

___________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA

J U D G M E N T

4thof September, 2025

SASHIKANTA MISHRA, J.

In the present application filed under Article 227 of

the Constitution of India, the petitioner seeks to challenge the order dated 26.07.2022 passed by the learned 2^nd Additional Civil Judge (Senior Division), Cuttack, in

Execution Petition No.1 of 2012 in dropping the said proceeding on the point of jurisdiction.

2. The petitioner was defendant in T.S. No.245 of 1989, which was filed by the plaintiff against him in the Court below for realization of an amount of Rs.1500/-. The defendant filed written statement challenging the maintainability of suit on the point of territorial jurisdiction and also filed a counter-claim to direct the plaintiff to supply goods as per the order placed or in the alternative to refund the advance amount of Rs.20,000/-

along with interest.

3. The trial Court, vide judgment dated 31.07.2001 decreed the suit and dismissed the counter-claim by holding that the plaintiff is entitled to recover the amount of Rs.1452.32 paisa from the defendant and that the defendant had not paid Rs.20,000/- under acknowledgement.

4. The defendant filed two appeals being, Title Appeal No.2 of 2002 and Title Appeal No.3 of 2002 before the District Court. By judgment passed on 29.04.2004 followed by decree, the Appellate Court, being learned Adhoc Additional District Judge, FTC-1 allowed both the appeals by holding that the suit is not maintainable at Cuttack but allowed the counter-claim directing the plaintiff to supply the goods in question to the defendant.

5. The plaintiff did not further question the judgment passed in the appeals but also did not comply with the decree. As such, the defendant lodged an execution case for execution of the decree passed in respect of the counter-claim. The Executing Court observed in the impugned order that the Appellate Court held that the suit having been instituted at Cuttack is not maintainable as the trial Court had no territorial jurisdiction and thereafter, applying the doctrine of merger, concluded that there is no cause of action to institute the suit and hence, the question of execution of judgment and decree dated 31.07.2001 and 13.08.2001 does not arise at all. The execution proceeding was thus, dropped on the point of jurisdiction by observing that the defendant may pursue his remedy at Angul to get the decretal amount in the counter-claim preferred by him as per the direction in Title Appeal No.2 of 2002.

6. Heard Mr. S.K. Sahoo, learned counsel for the Defendant-Petitioner and Mr. L. Mishra, learned counsel appearing for the Plaintiff-Opposite Party.

7. Mr. Sahoo would argue that the Executing Court has committed manifest illegality in dropping the execution proceeding on the point of jurisdiction relying only on the order of dismissal of the suit on the point of territorial jurisdiction but it has completely ignored the decree passed in the counter-claim filed by the defendant. The cause of action for the counter-claim arose entirely within the territorial jurisdiction of the Court at Cuttack and therefore, the decree can be executed at Cuttack.

8. Mr. Mishra, learned counsel appearing for the Plaintiff-Opposite Party fairly submits that the doctrine of merger referred to by the executing Court is not applicable. He further fairly submits that the counter- claim is like an independent suit, which can proceed even after the original suit has been dismissed.

9. Before adverting to the rival contentions raised, reference t