Order 21 CPC | Principle Of Res Judicata Not Applicable To Execution Proceedings: Orissa High Court
The Orissa High Court has recently held that the principle of res judicata, as provided under Section 11 of the Code of Civil Procedure (CPC), is not applicable to execution proceedings under Order XXI of the CPC as it is a 'self-contained' and 'independent Order'.
Justice Ananda Chandra Behera held that non-applicability of res judicata is a fundamental rule of civil law. In his words –
“It is very fundamental in civil law that, principles of res judicata are not applicable to the execution proceedings...Because, Order-21 of the C.P.C., 1908 containing 106 Rules in total for execution of decrees and orders is a self-contained and independent Order. For which, the principles of res judicata available in Section 11 of the Civil Procedure Code are not applicable to the execution proceedings.”
The Court was hearing a revision petition filed under Section 115 of the CPC against an order of the Civil Judge (Senior Division), Sonepur whereby an execution case instituted by the petitioner (the original decree-holder) was dropped on the ground that he omitted to indicate the exact amount of money to be realized from judgment-debtor and even did not provide valuation of two government vehicles and of the immovable properties mentioned in the schedule.
Upon hearing the parties, the Bench was of the view that the decree-holders ought not be debarred from executing the decree merely for technical defect(s) in the application for execution. Hence, the Court said, an opportunity must be given to him by the Court to supply the required particulars in order to remove the defects.
Further, the Court categorically held that the principle of res judicata is not applicable to the proceedings under Order XXI of the CPC, which provides for execution of decrees and orders. Therefore, in case of passing of an order to drop the execution proceedings on the ground of any technicality, the decree-holder is not precluded under law to file a fresh application for execution providing correct details.
Since it was observed that the Civil Judge (Senior Division) did not provide any opportunity to the petitioner to supply the requisite documents, the impugned order was held to be unsustainable as per law. Thus, the Court ordered –
“The matter vide Execution Case No.04 of 1991 is remitted back to the learned Civil Judge (Sr. Division), Sonepur. The learned Civil Judge (Sr. Division), Sonepur is directed to give an opportunity to the petitioner to provide the correct particulars relating to the mode of execution as per the provisions of law envisaged under Order-21, Rule-11 Sub-clause (2) of the C.P.C. and Appendix(E) No.6.”
Pertinent to mention that Explanation VII to Section 11 CPC (inserted by Act 104 of 1976, with effect from 01.02.1977), which deals with the principle of res judicata, provides as follows–
“The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.”
Further, the Apex Court in Dipali Biswas & Ors. v. Nirmalendu Mukherjee & Ors, LL 2021 SC 538 clarified that the principle of res judicata is applicable even to execution proceeding after insertion of Explanation VII to Section 11, CPC in 1976 (with effect from 1977). Para 37(ii) of the judgment reads as follows –
“It must be pointed out at this stage that before Act 104 of 1976 came into force, there was one view that the provisions of Section 11 of the Code had no application to execution proceedings. But under Act 104 of 1976 Explanation VII was inserted under Section 11 and it says that the provisions of this Section shall apply to a proceeding for the execution of a decree and reference in this Section to any suit, issue or former suit shall be construed as references to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.”
Case Title: Santosh Patra v. State of Odisha & Ors.
Case No: CRP No. 50 of 2024
Date of Judgment: October 09, 2025
Counsel for the Petitioner: Mr. Budhiram Das, Advocate
Counsel for the Opposite Parties: Mr. G. Mohanty, Standing Counsel for the State
Citation: 2025 LiveLaw (Ori) 128