Whether it is mandatory for court to frame issues in obstructionist proceeding?

To substantiate his submissions, learned counsel for the respondents has placed reliance on the precedent law laid down by this Hon'ble Court in Smt. Shanti Devi & Ors. Vs. Chimanaram Mantri Trust & Ors., reported in MANU/RH/1173/2017 : 2017 3 DNJ 1384, particularly para 23, 24, 25, 30, 32 and 37, which read as under:-

"23. On careful analysis of the case laws referred above, this Court finds that none of the authorities cited by counsel for the petitioners enunciates that the recording of evidence and framing of issues is prerequisite for deciding an objection petition under Order 21, Rule 97 of the Civil Procedure Code or the same can be claimed as a matter of right.

24. Adverting to the judgments cited by Mr. Manish Shishodia, this Court has gone through the judgment of Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., reported in MANU/SC/0252/1998 : (1998) 3 SCC p. 723, the Hon'ble Supreme Court in para No. 14 of the report has held that the adjudication under Order 21, Rule 97 of Civil Procedure Code does not contemplate detailed enquiry or collection of evidence. The Court can make adjudication on admitted facts or even on the basis of averments made by the resister; of course, the Court can direct the parties to adduce evidence for such determination, if the Court deems necessary. For the sake of ready reference, para 14 of the said judgment is reproduced hereunder:-

"14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary."

25. A careful reading of the aforesaid judgment reveals that the Hon'ble Supreme Court has clearly held that recording of evidence is not necessary in each case. The Court in a given case, if deemed necessary, can direct the parties to adduce evidence.

30. On a careful and comprehensive reading of the judgment cited by rival counsels, this Court has discerned that framing of issues and recording of evidence in execution proceedings is not essential in each case. As far as framing of issues is concerned, the Courts can frame point of determination but such determination may or may not require recording of the evidence. If the executing Court, on the basis of material available on record, coupled with the pleadings of the parties, feels that recording of evidence or summoning of witness is needed, the same can be recorded. But, for that purpose, the applicant has to clearly indicate in his application, the reasons necessitating such order and relevance of the evidence to be recorded. Recording of evidence can neither be asked as a matter of right nor can the same be ordered as a matter of course. The applicant has to assert and give cogent reasons indicating therein the nature of dispute, the assertion of the parties and the facts which are required to be proved by oral evidence.

32. In view of the factual backdrop of the case, particularly when on the basis of the documentary evidence as placed by the petitioners, if the trial court has come to a conclusion that recording of evidence and framing of issues is not necessary, no fault can be found in the order impugned.

37. The Executing Court after considering the factual matrix obtaining in the execution proceedings, has reached to a conclusion that neither framing of the issues nor recording of the evidence is required, this Court does not feel inclined to interfere in such discretionary order, in exercise of its otherwise discretionary - supervisory jurisdiction, being guided by the principles enunciated by the Supreme Court and this Court."

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 4538/2019

Decided On: 23.04.2019

 Prem Singh  Vs.  Amari Devi

Hon'ble Judges/Coram:

Dr. Pushpendra Singh Bhati, J.

Citation: AIR 2019 Raj 114

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Whether executing court can decide the issue that decree was obtained by fraud in obstructionist notice at the instance of third party?

 On plain reading of the aforesaid provisions, as amended after 1976, it is not open to contend, that the question relating to decree obtained by fraud cannot be gone Into by the Executing Court at the instance of the third party who is neither a judgment debtor nor claiming through the judgment debtor. Rule 101, as it presently stands, clearly bars a separate suit; and. Instead, postulates that all questions arising between the parties shall be determined by the Court dealing with the application filed under Rule 97 or Rule 99. There is no dispute that the present proceedings are arising out of the obstructionist notice taken out by the petitioner under Rule 97 to remove obstruction. Therefore, in such proceedings the issue regarding the decree having been obtained by fraud can surely be adjudicated by the Executing Court at the instance of a stranger to the decree.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3838 of 1989

Decided On: 05.03.2001

 Ahmed Abdul Aziz Bengali  Vs.  Mohammed Hanif M. Mulla and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001 ( 3 ) ALLMR 720

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Whether executing court can put obstructionist in possession of property even if he has not proved his title to said property?

When the respondent No.1
filed his application claiming to be put back into
possession, it was obliged to establish its right,
title or interest in the property without which his
application could not have been allowed. The
Executing Court has considered the application of
respondent No.1 in right perspective and has clearly
held that respondent No.1 failed to prove his title
by adverse possession, hence application deserves to
be rejected.
28. High Court committed error in observing that in
application proceedings under Order XXI Rules 99, 100
and 101, the Court is not to decide such question.
Without determination of right, title or interest,
the application could not have been allowed. We
having already extracted the observations of the High
Court, where it clearly held that the title in

respect of the property by way of adverse possession
need not be gone into in the appeal before it. The
above observation of the High Court was erroneous. In
the proceeding under Order XXI Rules 99, 100 and 101,
right, title or interest has to be determined and
without establishing right, title or interest, the
respondent No.1 cannot claim that he should be put
back into possession. We do not accept the
submission of the learned counsel for the respondent
that on mere fact that respondent No.1 was in
possession of the premises prior to being
dispossessed, they should be put back into
possession. For putting back into possession, the
respondent No.1 was obliged to establish his title to
the property by adverse possession, without which, he
could not have asked the Court to put him back into
possession. The High Court clearly erred in allowing
the appeal and the Executing Court has rightly
rejected the application filed by respondent No.1.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5632 OF 2019

SHAMSHER SINGH Vs  LT. COL. NAHAR SINGH 

ASHOK BHUSHAN, J.
Dated:July 29, 2019.

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Whether it is duty of executing court to interpret decree while executing it?

 On the other hand the learned counsel for the petitioner was justified in relying on judgment of the Hon'ble Supreme Court in the case of Meenakshi Saxena. vs. ECGC Ltd. (supra) wherein it has been held that although the executing Court cannot go beyond the decree, but it is the bounden duty of the executing Court to interpret the decree in the process of giving true effect to the decree. In the facts of the present case, a true effect to the decree can be granted only when the executing Court takes up the question of handing over of possession to the petitioner of the entire suit land admeasuring 5149 sq.ft. in the facts and circumstances of the present case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1468 of 2017

Decided On: 04.03.2019

 Abdul Shahid Vs.  Rameshwaridevi

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(4) MHLJ 857

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Whether executing court re-open question of trusteeship in execution of decree?

 It is well-settled that

an executing court cannot travel beyond the order or decree

under execution (see Rameshwar Dass Gupta v. State of

U.P. and Another, (1996) 5 SCC 728).

In the present case, the Trial Court had already considered

the evidence on record and given a finding that the Appellant

and his uncle were the trustees of the temple. Notably,

Umapathymurthy was a party to this suit and had contested it

by filing a written statement, claiming to be the eldest son of

Sadhasivamurthy. However, at that time, he did not put forth

any objections to the heir certificate of Sadhasivamurthy, which

was considered by the Trial Court while arriving at its finding.

This judgment was confirmed by the First Appellate Court and

no further appeal was preferred by the Respondents against it.

In light of this, the findings of the Trial Court have become final,

and Umapathymurthy as well as the other Respondents are

bound by them.

By allowing them to re-open the question of trusteeship by

way of an application in an execution petition, the High Court

has gone beyond the decree to be executed and exceeded its

revisional jurisdiction under Section 115 of the CPC.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7800 OF 2014

S. Bhaskaran Vs  Sebastian 

MOHAN M. SHANTANAGOUDAR, J.

Dated:SEPTEMBER 13, 2019

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Whether objection to validity of decree can be raised in execution proceeding?

 Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any Court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing Court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan. MANU/SC/0116/1954 : [1955]1SCR117 and Hiralal Patni v. Kah Nath MANU/SC/0041/1961 : [1962]2SCR747 . It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil Court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing Court could declare it to be such and decline to execute it against the respondent.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2006 of 1968

Decided On: 24.02.1977

Sunder Dass Vs. Ram Prakash

Hon'ble Judges/Coram:

P.N. Bhagwati and S. Murtaza Fazal Ali, JJ.

Citation : AIR 1977 SC 1201

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Whether objection regarding validity of decree for want of territorial jurisdiction can be raised before executing court?

The objection which was raised in execution in the present case did not relate to the subject matter of the suit. It was an objection to territorial jurisdiction which does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. An executing court cannot go behind the decree and must execute the decree as it stands. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman MANU/SC/0531/1970 : (1970) 1 SCC 670, the Petitioner filed a suit in the Court of Small Causes, Ahmedabad for ejecting the Defendant-tenant. The suit was eventually decreed in his favour by this Court. During execution proceedings, the Defendant-tenant raised an objection that the Court of Small Causes had no jurisdiction to entertain the suit and its decree was a nullity. The court executing the decree and the Court of Small Causes rejected the contention. The High Court reversed the order of the Court of Small Causes and dismissed the petition for execution. On appeal to this Court, a three judge Bench of this Court, reversed the judgment of the High Court and held thus:

6. 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.

8. If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or Under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 116 of 2019 (Arising out of SLP (C) No. 26932/2018)

Decided On: 07.01.2019

Sneh Lata Goel  Vs.  Pushplata and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Hemant Gupta, JJ.

Citation: AIR 2019 SC 824

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Whether O 21 R 26 of CPC is applicable if decree is executed by court which passed decree?

The contention of the learned Counsel for the revision petitioner that in view of Rule 26 of Order 21 CPC revision petitioner is entitled to seek stay of execution proceedings till he obtains orders in the petition filed under Rule 13 of Order 9 CPC. Rule 26 of Order 21 CPC relates to the power of the Court to which the decree has been sent for execution, staying the execution for a reasonable time to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or execution thereof for an order to stay execution. Section 39 CPC relates to transfer of decree for execution to another Court. Therefore, it is clear that Rule 26 of Order 21 CPC does not apply to cases where the decree is being executed by the same Court which passed the decree. In this case since the Court which passed the decree is the same as the executing Court, question of the executing Court granting stay of execution to enable the revision petitioner obtaining stay from the Court which passed the decree does not arise.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

CRP No. 2904 of 2006

Decided On: 10.10.2006

 Malladi Ravishankar Vs. Anadaraju Chits Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

C.Y. Somayajulu, J.

Citation: 2007 ALD(3)229,2007ALT(3) 595

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Whether executing court can direct inquiry in to future mesne profits?

Learned counsel appearing for the appellants urged that the judgments of the executing court as well as the High Court are erroneous inasmuch as the reliance on the decision reported in Rajajai Singh v. Ranganathappa ILR 1986 (3) Kar 2985 and Gopalakrishna Pillai and Ors. v. Meenakshi Ayal and Ors. MANU/SC/0268/1966 : AIR1967SC155 , were totally misplaced. We find substance in the argument. A perusal of record shows that the decree-holder in their plaint did not pray for the grant of any future mesne profit. It is also manifest from the decree passed by the trial court that the court did not grant either past and future mesne profit to the decree-holder. Further, the decree-holder did not move any application either for amendment of the plaint by incorporating prayer for grant of future mesne profit or amendment of the decree for grant of future mesne profit. Under such circumstances, it was not open to the executing court to direct the enquiry for ascertaining the future mesne profit under Order 20, Rule 12, Code of Civil Procedure. It is true that in the absence of any prayer in the plaint, it is open to the court to grant past mesne profit. So far the future mesne profit is concerned, the court has a discretionary power to pass a decree directing the enquiry into the future mesne profit and the court may grant such mesne profit, although it is not specifically asked for in the plaint. In the present case, the court has not exercised its discretion to grant future mesne profit. In the absence of such an order or direction, it was not open to the executing court to direct for enquiry into the future mesne profit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5514 of 1994

Decided On: 30.01.2002

 K. Hatiza Begum and Ors. Vs. K.M. Usman Pasha and Ors.

Hon'ble Judges/Coram:

V.N. Khare and Ashok Bhan, JJ.

Citation: 2002(2) Apex court judgments 343 SC

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Whether supreme court can order restitution?

We cannot accept either of the two submissions. The limitation for restitution under the Limitation Act is 12 years. The ex parte decree was set aside on 28th August, 1998 and thereafter, the Appellant has been litigating at various levels. If the Appellant had obtained stay order(s) during this period, obviously the period for which the stay was granted, would have to be excluded while calculating the period of limitation. This is not the job of this Court. It is for the executing court to decide whether the restitution petition, if any filed, is within the limitation or not. It is only the court which passed the original decree, which can order restitution. Restitution cannot be granted by the Supreme Court, as held in the case of State Bank of Saurashtra v. Chitranjan Rangnath MANU/SC/0006/1980 : (1980) 4 SCC 516.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2062 of 2009

Decided On: 08.09.2017

Vijay Singh Vs. Shanti Devi and Ors.

Hon'ble Judges/Coram:

Madan B. Lokur and Deepak Gupta, JJ.

Citation: (2017) 8 SCC 837,2018(2) MHLJ 7.
Read full judgment here: Click here

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Whether executing court can direct enquiry for future mesne profits?

Learned counsel appearing for the appellants urged that the judgments of the executing court as well as the High Court are erroneous inasmuch as the reliance on the decision reported in Rajajai Singh v. Ranganathappa [ILR 1986 (3) Karnataka 2985] and Gopalakrishna Pillai and Ors. v. Meenakshi Ayal and Ors. , were totally misplaced. We find substance in the argument. A perusal of record shows that the decree-holder in their plaint did not pray for the grant of any future mesne profit. It is also manifest from the decree passed by the trial court that the court did not grant either past and future mesne profit to the decree-holder. Further, the decree-holder did not move any application either for amendment of the plaint by incorporating prayer for grant of future mesne profit or amendment of the decree for grant of future mesne profit. Under such circumstances, it was not open to the executing court to direct the enquiry for ascertaining the future mesne profit under Order 20, Rule 12, Code of Civil Procedure. It is true that in the absence of any prayer in the plaint, it is open to the court to grant past mesne profit. So far the future mesne profit is concerned, the court has a discretionary power to pass a decree directing the enquiry into the future mesne profit and the court may grant such mesne profit, although it is not specifically asked for in the plaint. In the present case, the court has not exercised its discretion to grant future mesne profit. In the absence of such an order or direction, it was not open to the executing court to direct for enquiry into the future mesne profit. 

Supreme Court of India

K. Hatiza Begum And Ors. vs K.M. Usman Pasha And Ors. on 30 January, 2002

Equivalent citations: JT 2002 (2) SC 482, RLW 2003 (1) SC 110

Bench: V Khare, A Bhan

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Whether illegal decree can be set aside by executing court?

That apart, as observed by the lower appellate court, this is not a case where the executing court lacked inherent jurisdiction. When relationship is of landlord and tenant but the Rent Control Legislation was inapplicable to the premises even then, the suit had to be filed in the Court of small causes and it was so filed. Assuming Rent Control Legislation was applicable the suit still could have been filed in the Small Causes Court, considering language of Section 26(2) of the Provincial Small Causes Court Act and Section 28 of the Bombay Rent Act. Therefore, this is not a case where the Court lacked inherent jurisdiction as contended by Mr. Kulkarni. At the most, what could be said is that the Trial Court erroneously exercised the jurisdiction. The Court gave opportunity to the judgment debtor to continue in possession if he clears all the arrears of rent and in default of the same, he was to suffer the consequences i.e. Eviction from the premises. It is not as if the Trial court has denied him any opportunity to make payment of the arrears. By applying the principles enshrined in Rent Control Legislation, it gave him that opportunity. Merely because the order was passed ex-parte or by strictly not adopting the mode prescribed in the Rent Control Act and more particularly Section 12 of the same does not mean that the Decree is a nullity. At the most it is an erroneous or irregular or illegal decree. That distinction in law must be maintained. An erroneous or an illegal decree can be set aside only if party aggrieved by it invokes the remedies prescribed in law to impugn and challenge it. If it does not do so, then, in execution proceedings, the decree cannot be set aside on the ground of any illegality or it being vitiated by errors of procedure. Therefore, there is no merit in the argument of Mr. Kulkarni that the executing court lacked inherent jurisdiction to entertain and try the suit and hence, the decree is a nullity. The objections in that behalf have been rightly over-ruled and the concurrent orders and do not suffer from any error apparent or perversity so as to call for interference in writ jurisdiction.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4965 of 2008

Decided On: 12.06.2009

 Smt. Savitribai A. Salvi

Vs.

Smt. Suman Navgire and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari, J.

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When it is not permissible for executing court to make enquiry about validity and legality of foreign judgment?

It appears that the appellant herein has accepted the order and sought
for time to pay the costs. Moreover, it did not choose to approach the
appellate Court assailing the order and the same has attained finality. In
spite of the same, the appellant filed the application opposing the
execution petition filed by the respondents. The first and foremost
ground of attack against the order passed by the English Court is that
the order is not conclusive as per Section 13(b), CPC. Such argument
appears to be attractive but we are not able to appreciate the same in the
facts and circumstances of the case. Before we proceed further, it is
appropriate to have a look at Sections 13 and 14 of CPC which read as
under:
Section 13. When foreign judgment not conclusive : A
foreign judgment shall be conclusive as to any matter
thereby directly adjudicated upon between the same parties
or between parties under whom they or any of them claim
litigating under the same title except—
(a) where it has not been pronounced by a Court of
competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a
refusal to recognise the law of India in cases in which such
law is applicable;
(d) where the proceedings in which the judgment was
obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any
law in force in India.
Section 14. Presumption as to foreign judgments: The Court
shall presume upon the production of any document
purporting to be a certified copy of a foreign judgment that
such judgment was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the record; but
such presumption may be displaced by proving want of
jurisdiction.
13. A plain reading of Section 13, CPC would show that to be conclusive an
order or decree must have been obtained after following the due judicial
process by giving reasonable notice and opportunity to all the proper and
necessary parties to put forth their case. When once these requirements
are fulfilled, the executing Court cannot enquire into the validity, legality

or otherwise of the judgment.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10106 OF 2016
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 19791 OF 2013
M/S ALCON ELECTRONICS PVT. LTD
V
CELEM S.A. OF FOS 34320 ROUJAN, FRANCE & ANR. 
Dated:DECEMBER 09, 2016
Citation:(2017) 2 SCC253

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Whether executing court can decide legality and validity of arbitration award?

 I also cannot overlook the facts emerging from the records that
the minutes of the every sittings were served upon the opposite party but
despite receiving those minutes the opposite party chose not to appear
before the Learned Arbitrator nor took any steps as provided under
different sections of the Arbitration & Conciliation Act, 1996. They have
waited till the award was passed.34. It shocks the conscience of the Court that the Learned Court
below after entertaining the application for execution and passed
attachment order against the opposite party and further after rejecting
the application under Section 47 of the Civil Procedure Code filed by the
opposite party how could the Learned Court below allow the second
application filed under Section 47 of the Civil Procedure Code by the
opposite party thereby recalling the attachment order as well as holding
that the award was invalid and in-executable when admittedly the Court
below had no jurisdiction to entertain and decide any question as to the
legality and validity of the award in any manner whatsoever.
Submissions of Mr. Saha also do not impress this Court that the
filling of 2nd application under Section 47 of the Civil Procedure Code was
not hit by the principles of res judicata though under Civil Procedure
Code the opposite party has the right either to file an application before
this Learned Court if they felt that all the issues raised in the earlier
application under Section 47 of the Civil Procedure Code were not
decided by the Learned Judge vide the earlier Order they should have

preferred appeal from the said order.

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL CIVIL JURISDICTION
APPELLATE SIDE
Present:  Justice Samapti Chatterjee
C.O. 3955 of 2015
Fingertips Solutions Pvt. Ltd.
Vs
Dhanashree Electronics Limited
Judgment on : April 27, 2016.
Samapti Chatterjee, J.
Citation:2016(NOC)690 Cal

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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   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

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Whether executing court can order removal of super­structure made pendente lite during execution of decree?

It is thus clear that the Court executing the decree is
entitled to pass such incidental, ancillary, necessary orders
for effective enforcement of the decree for possession.  This
power also includes the power to remove any obstruction, or
super­structure made pendente lite.  In the case in hand, the
decree   of   possession   had   become   final.     It   was   for   the
Respondent­Municipal Council, Purna not to allow any such
illegal constructions raised  pendente lite  by the side of the
road.  Thus, the petitioner/decree holder is not bound by any
such   illegal   constructions.     It   is   not   necessary   for   the
petitioner   to   file   a   separate   suit,   otherwise,   the   decree
becomes in­executable driving him again for another round
of   litigation   which   the   Code   expressly   prohibits   such
multiplicity of litigation.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2073 OF 2013
 Iqbal Hussain s/o Ali Hussain,

VERSUS
Municipal Council, Purna,

CORAM : V. K. JADHAV, J.

DATE OF PRONOUNCING THE JUDGMENT :07.10.2015.
Citation; 2015(6) MHLJ 833

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Whether Executing court can alter term of consent decree?

We are of the view that, in the present case, Section 47 C.P.C. application made by the respondents herein was totally misconceived. It was not maintainable. The Executing Court had no authority to set aside, modify or vary the consent decree dated 26th April, 2002. We have quoted above Clause-K of the Scheme annexed to the consent decree. Clause-K makes the valuation by Ernst & Young final and binding on the disputing parties. If, according to the respondents, the opinion of the Valuer was tainted, biased or that they had failed to do their duty as a Valuer, then, appropriate proceedings ought to have been taken by the respondents either for setting aside or modifying the consent decree before the Competent Court but not in the Executing Court which has no power to set aside, modify or vary the decree. It was not open to the respondents to move under Section 47 C.P.C. for the relief, namely, to have the valuation report set aside as that would amount to virtually setting aside a portion of the consent decree which, as 

stated above, constituted very core and the basis of the consent decree. In our view, therefore, without going into the merits of the matter, we hold that Section 47 C.P.C. application made by the respondents was not maintainable and ought not to have been entertained by the Executing Court.

Supreme Court of India

M/S. Premium Exchange & Finance ... vs M/S. S.N. Bagla & Co. & Ors on 16 July, 2008

Bench: S.H. Kapadia, B. Sudershan Reddy

Citation;2009(3) ALLMR 472 SC, 2009 (74) ALR 604, 2008(2)OLR498, 2008(II)OLR(SC)498, 2009 106 RD516, 2008(2)UJ913

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Whether executing court can enlarge time which is fixed in compromise decree?

Shivshankar Gurgar v. Dilip, (2014) 2 SCC 465

  Ss. 148, 47 and Or. 23 R. 3 - Applicability of - Court's power thereunder in relation to enlargement of time - Held, can be

exercised only in respect of the period fixed or granted by the court - Thus, where the stipulation in compromise decree

was that the judgment-debtor was required to make payment of money within a specified period was a stipulation by

agreement between the parties concerned and it was not a period fixed by the court, held, S. 148 CPC could not be

invoked in relation to said period - Hence original compromise decree restored and eviction directed in terms thereof, 

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Whether court in land acquisition proceeding can permit addition of legal representative during execution of decree?

Though, served, the Respondent Nos.1
and 2 did not appear. They did not raise any
objection. On perusal of the impugned order, it
is explicit that relationship between the
petitioner and deceased Bansi is not in dispute.
Not only that but vide reply Exh.15, the
Respondent NO.1 Chandrabhagabai has shown her
willingness to give due share to the petitioner.
The application came to be rejected only on the
ground that the award shows names of the
Respondent Nos.1 and 2 and none other. This can
not be the ground to dislodge claim of the
petitioner. The Executing Court is required to
determine all questions which arise in the course
of execution of a decree as required U/s 47 of
the C.P.C.

5. In "Gangabai Gopaldas Mohata Vs.
Fulchand and others" 1997 (2) B.C.J.(S.C.) 347,
the Apex Court held that the Executing Court is
empowered to resolve the dispute relating to
claim of somebody regarding representation of the
decree holder and its denial by the decree
holder. In the present case, the Respondent Nos.
1 and 2 did not, in fact, denied legal rights
available to the petitioners. The application of
the petitioner could not be rejected only for the
reason that her name does not appear in the
decree. The impugned order is quite perverse and
is rendered without application of judicial mind.
Considering these aspects, the petition deserves
to be allowed.



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.887
OF 2008.

Suman  Bhausaheb Bhingardive  Vs Chandrabhagabai  Banshi
Bhingardive 

Citation;2009 (6) MH LJ 196
CORAM : V.R.KINGAONKAR,J.
Date : 03.07.2009.

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Whether objection filed under O 21 R 97 is to be decided in summary manner?

 It is settled principle of law that it is not incumbent upon the executing Court that it must put to trial every objections which are filed in any execution proceedings, even if prima facie they appear to be frivolous, vaxatious and arc only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of the Court.

Punjab-Haryana High Court

Rocky Tyres And Ors. vs Ajit Jain And Anr. on 17 December, 1997

Equivalent citations: AIR 1998 P H 202, (1998) 120 PLR 53

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