Saturday, 4 June 2016

Whether executing court can examine veracity of Decree in execution of decree?

 In such circumstances, the directions issued in the Decree have
attained finality and, as such, the learned Judge cannot embark into a fresh
investigation as to whether such relief granted by the learned Trial Court is
justifiable or not. The only objections which can be entertained in the execution
proceedings in such circumstances are in terms of section 47 of the Civil Procedure
Code. Section 47 of the Civil Procedure Code reads thus :
“Section 47 : Questions to be determined by the
Court executing decree.- (1) All questions arising
between the parties to the suit in which the decree
was passed, or their representatives, and relating to
the execution, discharge or satisfaction of the decree,
shall be determined by the Court executing the
decree and not by a separate suit.
(2) omitted by Act 104 of 1976. effective from 1-2-
1977
(3) Where a question arises as to whether any person
is or is not the representative of a party, such
question shall, for the purposes of this section, be
determined by the court
Explanation I: For the purposes of this section, a
plaintiff whose Suit has been dismissed and a
defendant against whom a suit has been dismissed
are parties to the suit.

Explanation ll: (a) For the purposes of this section, a
purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in
which the degree is passed; and
(b) All questions relating to the delivery of possession
of such property to such purchaser or his
representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of
the decree within the meaning of this section.
10. On perusal of the said provisions, in case there is any dispute with
regard to the execution of the Decree, the Executing Court has to hold an inquiry
and decide such dispute after hearing the parties in accordance with law. In the
present case, as the dispute was raised by the Respondents with regard to the
executability of the Decree sought to be executed by the Petitioners, the learned
Judge ought to have held an inquiry in terms of Section 47 of the Civil Procedure
Code before examining the objections raised by the Respondents. On this count
alone, the impugned Order passed by the learned Judge cannot be sustained and
deserves to be quashed and set aside. The above view also finds support in the
Judgment of the Apex Court relied upon by Shri Pangam, learned Counsel
appearing for the Petitioner in the case of Pratibha Singh & anr. vs. Shanti Devi
Prasad & anr. (supra).
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 639 OF 2012
Glorio Rosario Furtado,

V e r s u s

 The Cathedral Chapter of
The Archdiocese of Goa and Daman
also known as Cabido Do Se Primacial
De Goa, 
 Coram :- F. M. REIS, J
Date : 10thJuly, 2015.
Citation: 2016(2) MHLJ854

 Heard Shri D. Pangam, learned Counsel appearing for the Petitioners
and Shri R. G. Ramani, learned Counsel appearing for the Respondent nos. 3(c),
(i) and (j).
2. Rule. Heard forthwith with the consent of the learned Counsel.
Learned Counsel appearing for the Respondents, waives service.
3. I have extensively heard Mr. Pangam, learned Counsel appearing for
the Petitioner and Shri R. G. Ramani, learned Counsel appearing for the
Respondent nos. 3(c), (i) and (j).
4. The main grievance of Shri Pangam, learned Counsel appearing for
the Petitioners, is that the learned Executing Court whilst passing the impugned
Order has proceeded to examine the veracity of the Decree passed by the learned

Judge whilst disposing of the suit filed by the Petitioners whereby, inter alia, the
learned Judge directed the removal of the encroachment in an area of 765 square
metres of the disputed property.
5. It is the contention of Shri R. G. Ramani, learned Counsel appearing
for the respective Respondents, that the area of 765 square metres has not been
identified and that the learned Judge whilst disposing of the suit filed by the
Petitioners had in fact dismissed such suit though a direction referred to herein
above came to be granted. Learned Counsel further pointed out that this direction
is without jurisdiction and does not curl out from the findings arrived at by the
learned Trial Court whilst disposing of the suit and, consequently, the learned
Executing Court was justified to come to the conclusion that the said portion of the
directions in the Decree cannot be executed. Learned Counsel has thereafter
taken me through the findings of the learned Judge in the impugned Order wherein
the learned Judge has come to the conclusion that such directions are not in
consonance with the findings of the issues framed in the suit. Learned Counsel
further submits that the Respondents have not carried out any encroachment in the
alleged area of 765 square metres and, as such, the learned Judge was justified to
dismiss the Execution Application filed by the Petitioner.
6. On the other hand, Mr. Pangam, learned Counsel appearing for the
Petitioners, in reply pointed out that the Court cannot go behind the Decree and, as
such, the exercise by the learned Judge in examining the correctness of the
findings in the Decree under execution are totally erroneous and in excess of

jurisdiction of the Executing Court. Learned Counsel further submits that the area
of 765 square metres has in fact been clearly identified by the Petitioners and,
according to him, in any event, in case there was any dispute with that regard, the
learned Judge ought to have hold an inquiry in terms of Section 47 of the Civil
Procedure Code. In support of his submission, he has relied upon the Judgment of
the Apex Court, reported in 2003(2) SCC 330 in the case of Pratibha Singh & anr.
vs. Shanti Devi Prasad & anr. Learned Counsel as such submits that the
impugned Order be quashed and set aside.
7. I have given a thoughtful consideration to the rival contentions and
with the assistance of the learned Counsel appearing for the respective parties, I
have also gone through the records. On perusal of the Decree passed by the
learned Trial Judge, I find that the operative part of the Decree dated 15.03.1997,
reads thus :
“The suit is dismissed. However, the defendants,
their servants, agents and family shall not interfere
with an area of 765.00 square metres shown in plan
annexed to Exbt. Pw.1/D and shall remove any
structure or obstruction if done in the suit plot. Not
order as to costs. Decree shall be drawn
accordingly.”

8. The Petitioners in fact had challenged the said Judgment before the
Appellate Court as the reliefs sought by the Petitioners were rejected. On perusal
of the Judgment passed by the Appellate Court, I find that in fact the Respondents
had raised a contention that the directions to remove the encroachments in the

area of 765 square metres n the Decree were not sustainable but, however, the
learned Appellate Judge refused to entertain such objections.
9. In such circumstances, the directions issued in the Decree have
attained finality and, as such, the learned Judge cannot embark into a fresh
investigation as to whether such relief granted by the learned Trial Court is
justifiable or not. The only objections which can be entertained in the execution
proceedings in such circumstances are in terms of section 47 of the Civil Procedure
Code. Section 47 of the Civil Procedure Code reads thus :
“Section 47 : Questions to be determined by the
Court executing decree.- (1) All questions arising
between the parties to the suit in which the decree
was passed, or their representatives, and relating to
the execution, discharge or satisfaction of the decree,
shall be determined by the Court executing the
decree and not by a separate suit.
(2) omitted by Act 104 of 1976. effective from 1-2-
1977
(3) Where a question arises as to whether any person
is or is not the representative of a party, such
question shall, for the purposes of this section, be
determined by the court
Explanation I: For the purposes of this section, a
plaintiff whose Suit has been dismissed and a
defendant against whom a suit has been dismissed
are parties to the suit.

Explanation ll: (a) For the purposes of this section, a
purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in
which the degree is passed; and
(b) All questions relating to the delivery of possession
of such property to such purchaser or his
representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of
the decree within the meaning of this section.
10. On perusal of the said provisions, in case there is any dispute with
regard to the execution of the Decree, the Executing Court has to hold an inquiry
and decide such dispute after hearing the parties in accordance with law. In the
present case, as the dispute was raised by the Respondents with regard to the
executability of the Decree sought to be executed by the Petitioners, the learned
Judge ought to have held an inquiry in terms of Section 47 of the Civil Procedure
Code before examining the objections raised by the Respondents. On this count
alone, the impugned Order passed by the learned Judge cannot be sustained and
deserves to be quashed and set aside. The above view also finds support in the
Judgment of the Apex Court relied upon by Shri Pangam, learned Counsel
appearing for the Petitioner in the case of Pratibha Singh & anr. vs. Shanti Devi
Prasad & anr. (supra).
11. In view of the above, I find that the impugned Order passed by the
learned Judge deserves to be quashed and set aside and the learned Judge be
directed to hold an inquiry in terms of Section 47 of the Civil Procedure Code on the

objections raised by the Respondents in accordance with law.
12. In view of the above, I pass the following :
ORDER
(i) The impugned Order dated 20.06.2002 is quashed
and set aside.
(ii) The learned Judge is directed to decide the
objections filed by the Respondents to the Execution
Proceedings in the light of the observations made
herein above and in accordance with law.
(iii) Rule is made absolute in the above terms.
(iv) The parties are directed to appear before the
learned Judge dated 17.08.2015 at 10.00 a.m.
F .M. REIS, J.

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