Held: All questions between the parties can be decided by the executing court – These questions are limited to the execution of the decree – Executing court can never go behind the decree – Under s. 47 the executing court cannot examine the validity of the order of the court which had allowed the execution of the decree unless the court’s order is itself without jurisdiction – Appellate court, the second appellate court and the revisional court do not have the same powers, as the powers of the executing court, which are extremely limited. [Para 5]
Code of Civil Procedure, 1908 – s. 47 – Execution of decree – Four years after the pronouncement of the order of execution of decree which had attained finality, the judgment debtors filed an application before the executing court challenging the execution of decree – Decree holder challenged the maintainability of the application and the same was allowed – In revision, the said order was set aside – Decree holder then filed a writ petition on the ground that the revisional court erred in holding that the application moved by the judgment debtors for setting aside the order of execution comes within the purview of the power of the executing court u/s 47; and that the said order attained finality and res judicata would apply against the judgment debtors – Dismissed by the High Court – Correctness:
Held: Executing court rightly allowed the objections of the decree holder and dismissed the application filed by the judgement debtors – An execution proceeding works in different stages and if the judgment debtors have failed to take an objection and have allowed the preliminary stage to come to an end and the matter has moved to the next stage, the judgment debtors cannot raise the objection subsequently, and revert back to an earlier stage of the proceeding – Executing court gave the said reasons in its order – Merely, because it did not specifically refer to the principle of res judicata would not make any difference – High Court though found substance in the arguments of res judicata, nevertheless refused to interfere in the petition – High Court erred by not interfering in the matter – Order passed by the appellate court and by the High Court not sustainable thus, set aside while the order of the executing court is upheld – Res judicata. [Para 8] Code of Civil Procedure, 1908 – s. 47 – Exercise of power under – Execution of a decree – Inordinate delay and slow process in the execution of a decree – Concern expressed by the Supreme Court – Direction to the executing court to complete execution within six months. [Para 6]
Res judicata – Principles of - Applicability:
Held: Principles of res judicata are not only applicable in respect of separate proceedings but the general principles of res judicata are also applicable at the subsequent stage of the same proceedings and thus, the same court would be precluded to go into that question which has already been decided, or deemed to have been decided by it in the earlier stage – It would be barred by the principle of res judicata, or at least by the principle of constructive res judicata. [Para 7]
LIST OF CITATIONS AND OTHER REFERENCES.
Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC OnLine PC 16: (1871-72) 14 Moo IA 605; Dhurandhar Prasad Singh v. Jai Prakash University and Others (2001) 6 SCC 534: [2001] 3 SCR 1129; Rahul S. Shah v. Jinendra Kumar Gandhi and Others (2021) 6 SCC 418 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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