Location: High Court of Orissa, Cuttack

Date: 17-Dec-2025 13:31:08

IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.1526 of 2025

(In the matter of an application under Article 227 of the Constitution

of India)

Birabar Behera …. Petitioner

-versus-

Akshaya Kumar Nayak …. Opposite Party

Advocate(s) appeared in this case:-

For Petitioner : Mr. M.K.Mohanty, Advocate

For Opposite Party : Mr. S.Pattanaik, Advocate

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

11^th December 2025

B.P. Routray, J.

1. Heard Mr. M.K. Mohanty, learned counsel for the Petitioner

and Mr. S.Pattanaik, learned counsel for Opposite Party.

2. Present CMP is directed against impugned order dated 18^th June 2024 of the learned Executing Court passed in C.M.A. No.05

Location: High Court of Orissa, Cuttack Date: 17-Dec-2025 13:31:08 of 2022 at Annexure-8 (arising out of Execution Case No.11 of 2008) and the order dated 28^th July 2025 of the learned District Judge, Keonjhar passed in C.R.P. No.02 of 2024 (Annexure-9), wherein the objection of the Petitioner (JDR) under Section 47 of the CPC has been rejected.

3. The Opposite Party was the Plaintiff in Title Suit No.125 of 1995 which was decreed by the First Appellate Court in R.F.A. No.12/26 of 2006/03 declaring the right title interest of the Plaintiff over the suit schedule-A land and also for recovery of possession from the Defendant. Present Petitioner was the Defendant in the suit. The suit schedule land as described in the consolidated plaint after amendment is as follows:-

"District-Keonjhar, P.S.-Ghatagaon, Mouza Upardiha, Hal Khata no.l2, Hal plot no. 1554, Ac.0.11 dec out of Ac. 0.39 dec with dimension of 137 links, 76 links- 83 links and 137 links as shown in the rough sketch man (as per the sketch map submitted by the Civil Court Commissioner) which I corresponds to sabik plot no.812".

Location: High Court of Orissa, Cuttack Date: 17-Dec-2025 13:31:08

4. The decree as passed by the First Appellate Court has attained finality being not challenged before any higher forum. The Plaintiff filed Execution Case No.11 of 2008 being the DHR, where the Defendant as the JDR after his appearance filed his objection under Section 47 of the CPC to contend that the decretal land is unidentifiable and not properly demarcated in the plaint and therefore the decree is in-executable. While questioning the executability of the decree the JDR contends that the Plaintiff did not possess any land more than Ac.0.02 decimals in Hal Plot No.1554 corresponding to Sabik Plot No.812 since his purchased land is measuring Ac.0.66 decimals, whereas by virtue of the decree passed in another suit i.e. T.S. No.89 of 2000 the land measuring Ac.0.64 decimals in Plot No.1555 have been decreed in his favour. Accordingly, it is contended by the JDR that the DHR has no right to possess more than two decimals in Plot No.1554 and by suppressing the decree obtained in T.S. No.89 of 2000 he committed fraud on the Court to obtain such decree in his favour in T.S. No.125 of 1995 before the First Appellate Court.

5. Mr. Mohanty, learned counsel for the Petitioner contends that since the decree has been obtained by fraud, the same is not Location: High Court of Orissa, Cuttack Date: 17-Dec-2025 13:31:08 executable in as much as the decretal land is unidentifiable. He further submits that while dealing with the objection under Section 47 CPC, the Court is authorized to hold the decree as null and void on the ground of fraud played on it and therefore, in the present circumstances of the case the objection of the JDR regarding inexecutability of the decree has to sustain.

6. On the other hand, Mr. Pattanaik, learned counsel for the Opposite Party submits that the specific objection of the JDR under Section 47 being regarding to the executability of the decree for indefiniteness of the schedule of property of the plaint, the JDR is not allowed to enter into the merits of the decree to question the same in the guise of objection under Section 47 of the CPC.

7. Law is well-settled that while