Friday, 17 November 2017

Whether power available to court U/S 47 of CPC is narrower than those in appeal,revision,or review?

 It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.
20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.
21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:
“A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.”
22. Though this view has echoed time out of number in similar pronouncements of this Court, inDhurandhar Prasad Singh vs. Jai Prakash University and others, AIR 2001 SC 2552, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. 

Reportable
Supreme Court of India
M/S. Brakewel Automotive ... vs P.R. Selvam Alagappan on 21 March, 2017

Bench: Arun Mishra, Amitava Roy
Citation:(2017) 5 SCC 371
Print Page

Tuesday, 14 November 2017

When court should quash prosecution U/S 498A of IPC against family members of husband?

Having heard the learned counsel appearing for the
parties and having considered the materials on record, I am of
the view that no case is made out of any harassment or cruelty
within the meaning of section 498(A) of the IPC so far as the
applicants Nos.2, 3 and 4 are concerned. I take notice of the
fact that the applicant No.2 is the father-in-law, the applicant
No.3 is the mother-in-law and the applicant No.4 is the sisterin-law.
6. I am inclined to accept the case put up by the applicants
Nos.2, 3 and 4 in this petition. This application, therefore,

succeeds and is hereby allowed so far as the applicants Nos. 2,
3 and 4 are concerned. The first information report being C.R.
No.II-30 of 2015 registered at the Mahila Police Station, Rajkot
is hereby quashed. The Investigating Officer shall now
proceed further with the investigation of the first information
report so far as the applicant No.1 husband is concerned. 
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2180 of 2015

RITESHBHAI RAMESHBHAI RUPARELIYA & 3
V
STATE OF GUJARAT & 1
CORAM:  MR.JUSTICE J.B.PARDIWALA
Date : 10/11/2017

Print Page

Whether it is mandatory to file application seeking permission to adduce secondary evidence?

In the present case it appears that at an early stage an
application was filed styled as an ‘application under Section 65 of
the Evidence Act’ seeking ‘permission’ to prove the contents of a
lease deed by secondary evidence. A copy of this application is at
page 59, Exhibit “G”.
7. Section 65 of the Evidence Act reads thus:
“65. Cases in which secondary evidence relating to
documents may be given.— Secondary evidence may be
given of the existence, condition, or contents of a
document in the following cases:—
(a) When the original is shown or appears to be in the
possession or power—
of the person against whom the document is sought
to be proved, or of any person out of reach of, or not
subject to, the process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66, such
person does not produce it;
(b) when the existence, condition or contents of the
original have been proved to be admitted in writing by the

person against whom it is proved or by his representative
in interest;
(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot, for
any other reason not arising from his own default or
neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be
easily movable;
(e) when the original is a public document within the
meaning of section 74;
(f) when the original is a document of which a certified
copy is permitted by this Act, or by any other law in force in
India to be given in evidence;
(g) when the original consists of numerous accounts or
other documents which cannot conveniently be examined
in Court, and the fact to be proved is the general result of
the whole collection.
In cases (a), (c) and (d), any secondary evidence of
the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document,
but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general
result of the documents by any person who has examined
them, and who is skilled in the examination of such
documents.”

As is clear, this Section does not speak of any ‘application’ at all. It
only speaks, as Vazifdar J said, of the nature of the evidence adduced
as secondary evidence.
8. In this context, Section 63 is also to be noticed:
“63. Secondary evidence.— Secondary evidence means
and includes—
(1) certified copies given under the provisions
hereinafter contained;
(2) copies made from the original by mechanical
processes which in themselves insure the accuracy of the
copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties
who did not execute them;
(5) oral accounts of the contents of a document given
by some person who has himself seen it.”
9. The result of such applications, which as I have noted are
misconceived and not maintainable, is that exceedingly peculiar
orders are passed either allowing or disallowing the leave sought.
When leave is granted, apparently secondary evidence is then led
but that leave is, as we have seen, completely unnecessary and a
party may always place before the Trial Court secondary evidence as
contemplated by the Evidence Act without such leave. The result of
disallowing the application is even more serious because the
evidence in question is wholly excluded from consideration without

the slightest examination of the proposed secondary evidence.
There is no question of examining the secondary evidence first at
the stage of considering the application for leave. If the secondary
evidence is sufficient to prove the document, then the document
must be admitted into evidence. One of two things happen on any
such application: either the secondary evidence is not considered,
and the document is shut out, which is wrong, or the evidence is
considered twice over, once for the so-called ‘leave’ and then again
at the time of admitting the document.
10. This is no way to conduct the trial. Conceivably, it might
result in a document that might otherwise be admissible and proved
by secondary evidence being wholly left out only because of an order
of this kind on an application that in itself is misconceived and not
contemplated in law. This procedure wastes scarce judicial time and
achieves nothing. When a party goes to trial, he may have direct or
primary evidence of some documents, and secondary evidence of
others. It is for him to decide which of these he can best prove by
what evidence.
11. Take the two situations under Section 65(a) and (c). In the
first, notice is given to the other side to produce an original; the
other side does not produce the notice. Section 66 requires such a
notice, but also contains exceptions. One of these is in sub-clause
(2), “when, from the nature of the case, the adverse party must
know that he will be required to produce it”. There are others.
Therefore, it is not in every case that such a notice is compulsory. A
simple example is that of a letter by the party A to party B. The
original is with party B. He knows, or must know, from the nature of

the case, that he will be required to produce the original. He does
not. No notice is necessary, and party A can straightaway produce
his office copy of that letter. No ‘leave’ or ‘permission’ is required to
do this. Under Section 65(c), where the original is lost, the party
seeking to adduce secondary evidence must depose that the original
is lost and must also depose to the other conditions set out in that
sub-clause, viz., that he is not guilty of default or neglect. The
section itself says that in a case under 65(c), any evidence of the
contents is admissible. Again, there is simply no question of ‘leave’
being required.
12. In the present case, by the impugned order, the plaintiffs were
ostensibly ‘permitted’ to lead secondary evidence with respect to a
certified copy of a registered lease deed but were disallowed to lead
secondary evidence in respect of a gift deed.
13. The entire order is one that cannot be sustained. It adopts a
procedure unknown to our law and jurisprudence and directly
contrary to decisions of this court.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11151 OF 2017
Karthik Gangadhar Bhat,
Vs
Nirmala Namdeo Wagh,

CORAM: G.S. PATEL, J
DATED: 3rd November 2017

Print Page

Sunday, 12 November 2017

Whether court can revoke legal heir certificate granted under Bombay regulation Act?

 A legal heirship certificate was issued in the present
case under the provisions of Bombay Regulation VIII of 1827. The
regulation (Section 2 thereof) inter-alia provides that if any heir is
desirous of having his right formally recognized by the Court, the
judge, on an application of such heir, shall issue a proclamation in
the form contained in Appendix – A to the Regulation, inviting all
persons, who dispute the right of the applicant, to appear in the
Court and submit their objections, and if, no sufficient objection is
offered to the application, the judge shall proceed to receive
proof of the right of the applicant and upon being satisfied, grant
a certificate of heirship to the applicant. It is also to be noted
that by virtue of Section 390 of the Indian Succession Act, 1925,
various provisions contained in Part–X of that Act concerning
succession certificates including Section 383 of that Act are made
applicable, so far as may be, to the heirship certificates granted
under Bombay Regulation VIII of 1827. Section 383 of the
Succession Act provides for revocation of any succession
certificate granted under Part–X , inter-alia in a case where (i) the
proceedings to obtain such certificate were defective in
substance [clause (a)] or (ii) the certificate was obtained
fraudulently by making a false suggestion or by concealment from

the Court of something material to the case [clause (b)].
The argument of learned counsel for the petitioners in the
present case is, firstly, that since issuance of proclamation is an
essential condition for accepting the claim of heirship and issue a
heirship certificate and that condition was not followed in the
present case, the proceedings to obtain the heirship certificate
can be said to be defective in substance. It is secondly submitted
that inasmuch as there is a fraudulent suggestion on the part of
the respondents herein whilst obtaining the heirship certificate
that they were the only legal heirs and next of kin to the
deceased, as also an active concealment of the fact of the second
marriage of the deceased with petitioner no.1 and birth of two
daughters (petitioner nos.2 and 3) from out of that wedlock, the
heirship certificate is liable to be revoked.
8 It is pertinent to note that as far as clause (a) of
Section 383 is concerned, a case must be made out that the
proceedings were defective in substance. The petitioners claim
that since the proclamation was mandatory under the provisions
of Section 2 of Bombay Regulation VIII of 1827, issuance of
heirship certificate in the present case was defective for want of
such proclamation. It is pertinent to note in this behalf that the

proclamation was dispensed with by an express order of the
Court. If the misc. petition for heirship certificate was pressed
before the Court, without issuing the proclamation as per the
dispensation granted by the Court, the proceedings cannot be
said to be defective in substance. It is another matter if without
seeking any dispensation the heirship certificate was applied for
without such proclamation. In such case, the proceedings would
be defective in substance. So long as the order of the Court
providing for dispensation of the proclamation stands and is not
set aside, it is not for any party to claim that proceedings to
obtain heirship certificate without a proclamation suffer from any
defect in substance. There is, accordingly, no merit in the first
objection raised by the petitioner.
Clause (b) of Section 383 deals with a case where the
heirship certificate is obtained fraudulently by making of a false
suggestion or by concealment from the Court of something
material to the case. 'Fraud' itself implies suggestion of a fact by
one who does not believe it to be true or an active concealment of
a fact by one having knowledge or belief of the fact. In either
case, therefore, for seeking revocation of a certificate granted
under Part-X of the Indian Succession Act, or a heirship

certificate granted under Section 2 of Bombay Regulation VIII of
1827, the applicant for revocation must make out three
ingredients; firstly, it needs to be shown that there is a false
suggestion or concealment of a material particular in the
application for heirship certificate; secondly, such suggestion or
concealment must be shown to have been made knowingly, that is
to say, by someone who does not believe the suggestion to be true
or who has the knowledge or belief of the fact concealed; thirdly,
there should be no other consideration affecting the
maintainability of the application for revocation, for example, bar
of limitation or equitable considerations affecting the applicant's
right to seek revocation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC. PETITION NO.32 OF 2017
WITH
NOTICE OF MOTION NO.57 OF 2017
Kusum Chandrakant Shankardas & Ors. 
V/s.
Rajeshri Chandrakant Shankardas & Ors.

CORAM : S.C. GUPTE, J.
DATED : NOVEMBER 1, 2017.

Print Page