JUDGMENT : S.R. Singharavelu, J. - This Writ Petition was filed against the impugned Order Dated 16.7.2008 by the Learned Civil Judge (Senior Division), Bhubaneswar in his Execution Case No. 47 of 2003 whereby the Order Dated 9.11.2006 passed by his predecessor allowing transfer of ownership of suit house in favour of decree holder was recalled and the parties were relegated to the stage of execution, that was done in order to enforce the orders of this Court in W.P. (C) No. 1374 of 2006. 2. The Writ Petitioner as Plaintiff filed a suit in T.S. No. 79 of 1998 on the file of the Civil Judge (Senior Division), Bhubaneswar for mandatory injunction to direct his brother-(O.R No. 1 (Defendant No. 1) to abide by the agreement between the two and to transfer the land allotted to him by Bhubaneswar Development Authority (O.P. No. 2- Defendant No. 2) in favour of Petitioner-Plaintiff or in the alternative to repay a sum of Rs. 3,60,000 which was received by Defendant No. 1 from Plaintiff for the purpose of the allotment above mentioned. The above parties will hereinafter be referred as they are mentioned in the plaint. 3. The written agreement between the Plaintiff and his brother-Defendant No. 1 was filed along with the plaint and that was dated 11.10.1996. According to that agreement, Defendant No. 1 was to purchase a house from BD.A. in his name, but on behalf of the Plaintiff and after obtaining permission was to transfer the same in favour of the Plaintiff. 4. True it is that on 12.2.1996, the house bearing No. 72 was allotted in favour of the Defendant. The Plaintiff being a NRI upon knowing the fact of allotment came to India and approached the former for transfer of the said house. The Defendant refuted the agreement and disowned the repayment of Rs. 3,60,000/-. It is in that context, the suit in T.S. No. 79 of 1998 was filed by this Petitioner for mandatory injunction to transfer the suit house in his favour after getting sanction from the Defendant No. 2-BDA or in the alternative to pay back Rs. 3,60,000/- with 18% interest thereon till realization. On contest the said suit was decreed on 21.8.2003 and decree was passed to the following effect: The suit is decreed on contest against the Defendant No. 1 with cost. 3,60,000/- with 18% interest thereon till realization. On contest the said suit was decreed on 21.8.2003 and decree was passed to the following effect: The suit is decreed on contest against the Defendant No. 1 with cost. The Defendant No. 1 is directed to transfer the suit house described in Schedule-A of the plaint in favour of the Plaintiff by a registered deed after according permission from Defendant No. 2 if necessary or in alternative the Defendant No. 1 is directed to repay Rs. 3,60,000/- with interest of 9% per annum from October, 1995 till final payment within a period of three months failing which the Plaintiff is at liberty to take recourse of law. 5. The Petitioner filed execution case in E.P. No. 47 of 2003 after expiry of three months time with a prayer to direct the Defendant No. 2 to take immediate step for transfer of the suit house in favour of the Writ Petitioner-Plaintiff. By leaving the execution case for ex parte hearing on 16.8.2005, it was after a month delay, Defendant No. 1 came forward with an application u/s 5 of the Limitation Act with an objection under Order 21, CPC. That objection was heard and there was order passed on 12.12.2005 whereby the Defendant No. 1 was directed to execute a sale deed within a period of one month failing which the same shall be executed in favour of the Petitioner-Plaintiff through Court. 6. Aggrieved over such Order Dated 12.12.2005, the Defendant-O.P. No. 1. filed the writ application in W.P.(C) No. 1374 of 2006 whereupon hearing both sides, the following was ordered: I accordingly allow the writ application and direct that the Petitioner be permitted to exercise the second option of paying back the amount of Rs. 3,60,000/ - with 9% interest per annum from October, 1995 till final payment. If the Petitioner fails to comply with the said option within the time specified by the Executing Court, the Court shall proceed with the execution of the first direction for execution of the deed of transfer. The impugned order is accordingly set aside. 7. 3,60,000/ - with 9% interest per annum from October, 1995 till final payment. If the Petitioner fails to comply with the said option within the time specified by the Executing Court, the Court shall proceed with the execution of the first direction for execution of the deed of transfer. The impugned order is accordingly set aside. 7. Before ever the impugned Order Dated 12.12.2005 was set aside by Order Dated 19.5.2006 in the said Writ Petition, it was made clear by the Learned Single Judge of this High Court that as the Defendant No. 1 was offering the amount with interest as directed in the decree, the same should have been allowed by the Trial Court. It was pointed out in the said order of this Court that after all the Plaintiff in the plaint had only prayed for either to transfer the suit house or to pay back the same with interest. Therefore, the Learned Single Judge held that the option was lying with the Defendant No. 1 to satisfy either of the two directions; and that it cannot be said as held by the Trial Court that only when the first option fails, the second option is to be exercised and, it was held in the order of the Writ Petition No. 1374 of 2006 that the prayer of the Defendant No. 1 was illegally turned down. It is, therefore, by setting aside the Order Dated 22.12.2005 of the Learned Executing Court, this Court had ordered that first of all, the second option in the decree dated 21.8.2003 should be allowed to be exercised at first and then, if the Defendant No. 1 failed to comply with the said option, within the time specified by the Executing Court, then the Court shall proceed with the execution of the other direction for execution of sale deed of transfer. 8. Now one thing is to be made clear is that according to the Trial Court decree dated 21.8.2003, the first option is to execute the sale deed by the Defendant No. 1 and in default, the second option of repayment of Rs. 3,60,000/- with interest shall lie; but it is significant to note that the said order of option was reversed by the Learned Single Judge in W.P .(C) No. 1374 of 2006. 3,60,000/- with interest shall lie; but it is significant to note that the said order of option was reversed by the Learned Single Judge in W.P .(C) No. 1374 of 2006. The Defendant No. 1 is permitted to exercise firstly the option of paying back the amount of Rs. 3,60,000/ - with 9% interest from October, 1995 till final payment. It was ordered that if there was non-compliance of the same by Defendant No. 1 within the time specified by the Executing Court, then the need for executing a sale deed will arise. 9. As against this Order Dated 19.5.2006 made in the above mentioned writ application, the Writ Petitioner/Plaintiff/decree holder preferred a petition for Special Leave to Appeal (Civil) No. 10081 of 2006 before the Hon'ble Apex Court. There was an order on 19.6.2006 staying the operation of the Order Dated 19.5.2006 passed in W.P.(C) No. 1374 of 2006 of this Court. (The SLP was ultimately dismissed and the order of the Learned Single Judge stood confirmed) 10. Immediately after the above order of stay dated 19.6.2006 passed by the Apex Court, the subsequent order made in Execution Petition No. 47 of 2003 before the Learned Civil Judge (Senior Division), Bhubaneswar was on 26.6.2006. The following is the order thereon: The record is put up today on the strength of advance petition filed by the adv. for the Dhr. Adv., for the Dhr. also files a petition praying to execute the transfer deed of the Suit house in favour of the Dhr. Copy not served but attached. Dhr. also files xerox copy of certified copy of Order Dated 19.6.2006 passed in Civil Appeal No. 10081/2006 of Hon'ble Supreme Court of India and Order Dated 19.5.2006 passed in W.P.(C) No. 1374 of 2006 of Hon'ble High Court of Orissa, Cuttack. Put up on the date fixed. 11. The next order in the said E.P. was on 1.7.2006. On that day decree holder filed certified copy of Order Dated 19.6.2006 passed by the Apex Court, which was brought to the notice of both sides. Advocate for the Defendant-Judgment debtor filed a petition under Order 21, Rule 1 sub Rule 5 praying to allow him to deposit the full decretal amount upto period of 17.12.2003. On that day decree holder filed certified copy of Order Dated 19.6.2006 passed by the Apex Court, which was brought to the notice of both sides. Advocate for the Defendant-Judgment debtor filed a petition under Order 21, Rule 1 sub Rule 5 praying to allow him to deposit the full decretal amount upto period of 17.12.2003. As per the Order Dated 19.5.2006 in W.P.(C) No. 1374 of 2006, the Executing Court may fix a time for the Defendant No. 1 to repay the said amount in order to exercise the first option as provided in the order of the Writ Petition before this Court. Since there was a stay granted by the Apex Court against the said order of this Court, the Learned Executing Judge instead of allowing the Defendant No. 1 to deposit the full decretal amount within a specified time had adjourned the case to 31.8.2006 and thereafter for one hearing for awaiting further intimation from the Hon'ble Supreme Court. 12. But suddenly after one more hearing on 31.10.2006, the Executing Court entertained the decree holder's draft application which was later on approved behind the back of the Judgment debtor and without further notice to him. On 25.4.2007, the advance petition by the decree holder was entertained and his memo, stating that he has already taken possession of the suit house from the Judgment debtor was recorded and on 3.5.2007 the execution proceeding was dropped with full satisfaction of the decree holder. It is subsequent thereto that the successor Learned Judge of the E.P. Court had passed the impugned Order Dated 16.7.2008 by undoing what all done by his predecessor and relegating the parties to its original position with such stage in the E.P. while Apex Court granted stay on 19.6.2006. 13. Mr. It is subsequent thereto that the successor Learned Judge of the E.P. Court had passed the impugned Order Dated 16.7.2008 by undoing what all done by his predecessor and relegating the parties to its original position with such stage in the E.P. while Apex Court granted stay on 19.6.2006. 13. Mr. P. Roy, Learned senior Counsel for the Respondent- Defendant No. 1 submitted that when once the Apex Court had granted stay of the Order Dated 19.5.2006 of this Court in W.P.(C) No. 1374 of 2006, inasmuch as the said order reversing the option given to the Defendant under the decree of the lower Court on 21.8.2003, had a bearing upon the latter and, therefore, the Executing Court ought not to have entertained any application or request of the decree holder in executing the Trial Court's decree and ought not to have indulged itself in making an order against the tenore of the stay order granted by the Apex Court. It was further argued that the Learned Judge of the Executing Court had erred in making further orders without even supplying a copy of the advance petition of decree holder to the Judgment debtor/ Defendant No. 1 It was also pointed out that even a copy of the draft application for approval filed by the decree holder was not supplied to the other side. It was said that under the disguise of the non-appearance of the Judgment debtor, the then Learned Executing Judge had transgressed its limits and gone to the extent of acting against the order of the Apex Court. 14. The action of the Executing Court cannot be defended by saying that what was stayed in the Supreme Court was only the Order Dated 19.5.2006 of this Court and not the Trial Court's decree. It is so because the efficacy or validity of the Trial Court's decree is largely dependant on the order that could be passed by the Apex Court accepting either the decree of Trial Court or order of this Court; and both could not be accepted as they are mutually inconsistent, the later varying the former. There was possibility for the Apex Court to accept this Court's order, in which case, automatically Trial Court decree could not stand. It is in this view, when this Court's order was stayed by the Apex Court, E.P. Court should not have implemented the Trial Court's decree. There was possibility for the Apex Court to accept this Court's order, in which case, automatically Trial Court decree could not stand. It is in this view, when this Court's order was stayed by the Apex Court, E.P. Court should not have implemented the Trial Court's decree. As a matter of fact the Apex Court had passed the final order on 25.4.2008 dismissing the appeal filed by the Writ Petitioner and confirming the order of the Learned Single Judge of this Court according to which the decree dated 21.8.2003 of the Trial Court is erroneous. Ultimately, it is the order of the Learned Single Judge of this Court that is confirmed by the Apex Court. As per the said order of this Court, Defendant No. 1 would first have the option of repaying of Rs. 3,60,000/-; But contrary to the same, Executing Court has acted in a different way by recording full satisfaction upon the execution of Sale Deed of Defendant No. 1. This is contrary to the orders of this Court as well as the Supreme Court. 15. Mr. Patnaik, Learned Counsel for the Writ Petitioner/Plaintiff submitted that nowhere in Order Dated 19.5.2006 of this Court, the decree of the Trial Court passed on 21.8.2003 was set aside; that nowhere in the order of the Supreme Court, stay against the decree of the Trial Court was granted; and that the Judgment debtor who was obliged to exercise his option of depositing the amount which he has to repay, had neither chosen to come to the Executing Court as per the Order Dated 19.5.2006 of this Court to get the time specified for remitting the amount nor participated in the proceedings of the Execution where full satisfaction was recorded. 16. The Learned Counsel for Writ Petitioner/Plaintiff finally argued that assuming some illegality or irregularity upon the Executing Court, the Judgment debtor loses his right to question the same, if he makes no appearance or failed to object after making appearance and that Order 21 Rule 23(1), CPC would cure the irregularity and make the order legal. What Order 21 Rule 23 CPC provides is as follows: (1) Where the person to whom notice is issued under (rule 22) does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed. What Order 21 Rule 23 CPC provides is as follows: (1) Where the person to whom notice is issued under (rule 22) does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed. (2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit. 17. The Learned Counsel for the Writ Petitioner submitted a case law reported in 1972(1) CWR 147 (Rajkishore Mohanty and Anr. v. Kangali Mohapatra and Ors.) wherein it reads as follows: - In AIR 1944 Mad. 420 (S.C. Puttappaji v. D. Mallappa and Ors.) an execution petition was filed out of time. The Judgment-debtors remained ex parte even after notice to them and an order "proclaim and sell" was passed by the Court. At a later stage of the proceedings the Judgment-debtors took the objection of limitation. A Learned single Judge of the High Court held following the dictum of Patanjali Sastri, J. in a previous Bench decision of that Court in AIR 1941 Mad. 440 that the order "proclaim and sell" impliedly decided that the execution petition was not barred by limitation and that the order operated as res judicata at a later stage of the proceedings and could not be disputed by the Judgment-debtor. The same view was adopted by a Division Bench of that Court in AIR 1954 Mad. 1070 (Shanmugavelu v. Karupannaswami Pillai). 18. So it was argued that on disappearance in Executing Court the Judgment debtor-Defendant No. 1 waived his right to object the so- called irregularity in the order of the Executing Court. His default will operate as constructive Res judicata against him. (Vide Baijnath Prasad Sah Vs. Ramphal Sahni and Another, : Five Judges Bench Judgment) 19. The Learned Counsel further submitted that as per Order Dated 1.7.2006 of Executing Court since advocates for the parties were recorded as present, no subsequent notice upon the Judgment debtor or Counsel is required. It was further argued that upon recording of full satisfaction of decree, the Executing Court becomes functus officio (Vide Ground No. 7 of the present Writ Petition). It was further argued that upon recording of full satisfaction of decree, the Executing Court becomes functus officio (Vide Ground No. 7 of the present Writ Petition). So the Learned Senior Counsel appearing for the Writ Petitioner submitted that the orders passed by the erstwhile Learned Judge of the Executing Court can never be set aside by his successor in his impugned Order Dated 16.7.2008 and, therefore, the same is to be set aside. 20. Before pondering over the submissions made on behalf of either side, one thing that has to be kept in mind is that as per final order of the Supreme Court passed on 25.4.2008, the Order Dated 19.5.2006 of this Court is sustained. As per the said Order Dated 19.5.2006, the decree dated 21.8.2003 passed by the Trial Court is erroneous inasmuch as the option to repay the amount by Defendant No. 1 should have been given to him and only after exhausting that remedy and in default of the same, the remedy of getting a sale deed executed by Defendant No. 1 to Plaintiff shall arise. This also got the sanction of the Hon'ble Apex Court since the Special Leave to Appeal stands dismissed. So the ultimate result is that the Judgment debtor- Defendant No. 1 shall necessarily have the option of repayment of the amount that he received from the Plaintiff before ever he is required to execute a sale deed for Plaintiff. That option was not allowed by the Executing Court despite Defendant filed an application therefore on 1.7.2006. The entire records of the Executing Court would show that the second option of executing a sale deed for Plaintiff was wrongly or inadvertently given preference. The Executing Court erred so at the instance of the decree holder. The next aspect is that the Learned Single Judge had erred in advancing the hearing of a date at the instance of decree holder without notice to the other side. Such advance petition was allowed on 3.8.2006 and on 25.4.2007 which is against the principles of natural justice. Again when once a decree holder had filed a draft application for approval of the sale deed, the copy of the draft should have been served upon the other side which has not also been done. Thus full satisfaction was recorded behind the back of the other side. 21. Again when once a decree holder had filed a draft application for approval of the sale deed, the copy of the draft should have been served upon the other side which has not also been done. Thus full satisfaction was recorded behind the back of the other side. 21. Again the grave mistake on the part of the Executing Court is that after having known about the stay order passed by the Hon'ble Apex Court, and after recording rightly on 1.7.2006 and 31.8.2006 that further intimation from the Supreme Court is to be awaited, had immediately given a go-bye to that view and jumped into granting approval of the draft sale deed of the decree holder and allowed Defendant No. 2 (BDA) to activate the sale deed in favour of the Plaintiff, mostly on advancing the hearing date in a half-hazard manner, without citing any reason. I have already mentioned about the bearing of the stayed order of this Court which it had, with the decree of Trial Court and that the later is likely to suffer at the hands of the Apex Court. I have also mentioned that according to the order of this Court in W.P.(C) No. 1374 of 2006, the decree of Trial Court is erroneous in giving the option to Defendant No. 1 in a topsy-turvy manner. It was also made known that despite earlier stay upon order of this Court, the later was confirmed while dismissing the Special Leave application of the decree holder. Thus while such stay was in force in the Apex Court, the Executing Court should not have passed any order in implementing the Trial Court decree, in its own arbitrary manner at the instance of the decree holder and behind the back of the Judgment debtor. By such illegal order of the Executing Court in approving the draft sale deed and executing such sale deed for Plaintiff after putting the Defendant No. 2 (BDA) to oblige its wrong direction, the order of this Court passed on 19.5.2005 which was later confirmed by the Apex Court, could not first get implemented. By such illegal order of the Executing Court in approving the draft sale deed and executing such sale deed for Plaintiff after putting the Defendant No. 2 (BDA) to oblige its wrong direction, the order of this Court passed on 19.5.2005 which was later confirmed by the Apex Court, could not first get implemented. It is not acceptable to say that as per Order 21 Rule 23 CPC, the Judgment debtor waived his right to object the said illegality; and any such illegality would be considered in negative by operation of constructive res judicata u/s 11 CPC, which would of course be applicable to execution proceeding. Order 21 Rule 23 CPC would not go against the Defendant/Judgment debtor because he has appeared through Counsel in the Executing Court and he has also filed objection to execute such deed and preferred his option to deposit the said sum of Rs. 3,60,000/- and filed application therefor. This appearance and objection raised by the first Defendant is in conformity with Order 21 Rule 23 CPC and so it may not go against him. Unmindful of the direction of this Court to specify the time for deposit on the said application of the Judgment debtor, the executing Court went to satisfy the decree of the Trial Court, which was found to be erroneous by this Court. Taking advantage of this stay order of the Apex Court against this Court's order and without understanding the indirect bearing or impact that the order of this Court had upon the Trial Court's decree, the Executing Court at the instance of decree holder had unlawfully accelerated the implementation of Trial Court's decree, which was susceptible to be set aside, or modified, by such act of Apex Court. 22. In allowing or dismissing the then pending Special Leave Petition. Before ever the Apex Court confirmed this Court's order, according to which the Trial Court decree is erroneous, such erroneous decree was hastily implemented by the Executing Court. To this extent the then Learned Executing Judge has contravened the mandate under Article 141 of the Constitution of India which provides that the law declared by the Apex Court shall be binding on all Courts within the territory of India. To this extent the then Learned Executing Judge has contravened the mandate under Article 141 of the Constitution of India which provides that the law declared by the Apex Court shall be binding on all Courts within the territory of India. When the Learned Executing Judge first thought that it should be accordingly done after awaiting intimation from the Hon'ble Supreme Court, it is not known as to how and why at the instance of the decree holder, he had contravened the constitutional mandate. So it is unacceptable to say that the High Court vide its Order Dated 19.5.2006 has not set aside the decree dated 21.8.2003 and, therefore, it can be implemented by executing the same; similarly it cannot be said that the Hon'ble Supreme Court has not directly stayed the execution of the Trial Court's decree dated 21.8.2003, since the very stay of the order of the Apex Court will go to the root of the decree passed on 21.8.2003 and, therefore, the latter decree should not be executed until further order that comes from the Hon'ble Supreme Court. It cannot also be that the Judgment debtor was inactive and kept himself away from Court and that can empower the Executing Court even to go beyond the order of stay granted by the Apex Court. It cannot again be said that the Judgment debtor had not complied with the orders of this Court dated 19.5.2006 inasmuch as he had filed objection on 1.7.2006 in the execution proceeding and offered to pay back the amount and prayed for further orders of Executing Court. Above all, the Executing Court has got a duty to oblige the orders of the Hon'ble Supreme Court. Any deviation thereon on its part cannot be accepted and the Executing Court cannot be allowed to take shelter at the absence of or inaction of the Judgment debtor, which is also factually not correct. It is, therefore, rightly by the impugned Order Dated 16.7.2008, the clock was set at right by recalling the earlier order in getting the sale deed executed for Plaintiff and the parties were rightly relegated to the earlier stage. I find no illegality nor wrongful exercise of jurisdiction in the impugned Order Dated 16.7.2008. It is, therefore, rightly by the impugned Order Dated 16.7.2008, the clock was set at right by recalling the earlier order in getting the sale deed executed for Plaintiff and the parties were rightly relegated to the earlier stage. I find no illegality nor wrongful exercise of jurisdiction in the impugned Order Dated 16.7.2008. By virtue of the impugned order, there was proper exercise of jurisdiction and whatever mistake done by the Learned predecessor A of the Judge who passed the impugned order, was rightly set right by the impugned order. Therefore, the impugned order will sustain. 23. The Writ Petition is accordingly dismissed. Final Result : Dismissed