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Judgment
K.R. Mohapatra, J
This matter is taken up through hybrid mode.
Order dated 26th December, 2017 (Annexure-1) passed by learned Senior Civil Judge, Bargarh in Execution Petition No.26 of 2009 is under challenge in this CMP, whereby an application filed by the Petitioner-D.Hr under Order VI Rule 17 CPC to amend the execution petition, has been rejected.
Ms. Sahoo, learned counsel being authorized by Mr. Bose, learned counsel for the Petitioner submits that C.S. No.7 of 2007 was filed in the Court of learned Senior Civil Judge, Bargarh for specific performance of contract. The said suit was decreed with a direction to the Defendant-Opposite Party to refund the consideration amount of Rs.1,14,000/- to the D.Hr. Accordingly, Execution Case No.26 of 2009 was filed by the D.Hr. During pendency of the execution proceeding, the Petitioner filed an application for amendment of the execution petition to incorporate an alternate prayer in the execution petition to direct the Defendant-J.Dr to execute the sale deed in favour of the Plaintiff-D.Hr. The said application was rejected on the ground that the Court cannot go beyond the decree.
It is her submission that since the Plaintiff-Petitioner has paid a substantial amount of Rs.1,03,000/- to the Defendant during pendency of the suit and the fact was within the knowledge of the Court, there was no difficulty on the part of the learned executing Court to pass an order directing the Defendant to execute the sale deed by accepting the balance consideration amount.
Mr. Sahoo, learned counsel for the Opposite Party vehemently objects to the same and submits that there is no infirmity in the impugned order under Annexure-1, as the Plaintiff essentially prayed for a relief, which has already been refused in the suit itself. While refusing the grant the prayer to direct the Defendant to execute the sale deed, learned trial Court directed to refund the consideration amount. Learned Executing Court cannot go beyond the decree, as rightly observed in the impugned order under Annexure-1. Hence, he prays for dismissal of the CMP.
Considering the rival contentions of the parties, this Court without any hesitation records that learned Executing Court has committed no error in rejecting the petition for amendment of the execution petition to direct the Defendant-Opposite Party to execute the sale deed. Since the decree was for refund of consideration amount, no prayer for amendment of the execution petition to incorporate a relief to direct the Defendant to execute the sale deed, can be granted.
Hence, I find no infirmity in the impugned order under Annexure-1.
Accordingly, the CMP being devoid of any merit stands dismissed.
Interim order dated 21st March, 2018 passed in Misc. Case No.294 of 2018 stands vacated.
Urgent certified copy of this order be granted on proper application.
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