Whether objector can file same objection again if his first objection was rejected and said order has attained finality?

The respondent No. 1 had filed one such application (Exh. 58) way back on 3.3.2011, which stood rejected on merits on 4.8.2011. This order attained finality. Yet, after about five years of such rejection, the respondent No. 1 filed another application objecting to the execution of the decree, virtually on the same ground on which she had filed the earlier application that was rejected.

14. The Executing Court correctly rejected the subsequent application filed in the year 2016 (Exh. 185) and in the order rejecting the said application, the Executing Court recorded in paragraph Nos. 7 to 10, not only about the rejection of the earlier application of respondent No. 1 but also a series of such applications filed by other objectors, which were rejected. The relevant portion of the said order has been quoted above.

15. Despite such glaring facts, the District Court, by the impugned order has allowed the appeal of respondent No. 1 thereby setting aside the order of Executing Court and sending the matter back to the Court for another ground of litigation which the decree holder would be made to suffer. The court below has committed grave error in observing in its judgment and order that the earlier application filed by respondent No. 1 before the Executing Court at Exh. 58 was not decided on merits. This observation is wrong on the face of the record. Apart from this, the Court below has erred in observing that a fair opportunity was not granted to the respondent No. 1 for adjudicating her rights in the suit property. The said observation is clearly unsustainable because the respondent No. 1 exercised her rights by filing the application/objection at Exh. 58, which stood rejected on 4.8.2011 by the Executing Court and such order had attained finality. The Court below seems to have placed emphasis only on procedure, without appreciating the substance of the matter. In any case, even if procedural aspect was to be emphasized, the facts of the present case show that the subsequent application/objection filed on behalf of respondent No. 1 at Exh. 185 deserved to be rejected, because similar earlier application/objection at Exh. 58 stood rejected on 4.8.2011, which had attained finality.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 364 of 2017

Decided On: 26.02.2018

Nandkishor Hemraj Khandelwal Vs.  Chandrakalabai Kisanrao Marotkar and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(5)MHLJ 379

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Basic concept of precept under S 46 of CPC

 It appears that the decree holder as well as the objector Company are proceeding on the assumption that the order dated 18th December, 2010 passed by Himachal Pradesh High Court directing issuance of a precept amounted an attachment order. That, however, is not the correct position in law. A precept under Section 46 CPC is only a request of a Court passing the decree to another Court where the decree holder intends to initiate execution proceedings because of the judgment debtor having attachable properties within the jurisdiction of the Court to which decree is transferred under Order XXI Rule 6 CPC. Upon receipt of the precept the transferee Court has to attach the property in respect of which precept is received by it and even that attachment remains in force for a period of two months unless that attachment is extended by the Court which had passed the decree. This is provided in Section 46 CPC itself.

DELHI HIGH COURT

KARAM CHAND Vs. HARWINDER SINGH

Decided On : Sep-09-2013

CORAM: HON'BLE MR. JUSTICE P.K.BHASIN

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Whether it is necessary to make full fledged enquiry if objector is claiming through judgment debtor?

I have already found that the non-applicants have not

claimed any independent right or title over the suit property and, 

therefore, their remaining in possession through Nanaji would not give

them any right to obstruct the decree which was passed. It would be

travesty of justice if a decree that was passed in the year 1953 is

allowed to be frustrated or contested at such late stage on frivolous

grounds. I respectfully concrete with the view taken by Brother

A.H. Joshi, J. in the case of Jagdish s/o Motilal

Joshi...Versus...Chandrapal s/o Tulsiram Bhola and another, reported

in 2007 (1) Mh.L.J. 402, of which paragraph No.18 reads thus :

"18. In the present case, it is seen on facts that on showing by the applicant, she has no independent right, title and interest and no issue at the arise for enquiry. It would, therefore, be unjust and contrary to the scheme of law to hold that notwithstanding what is the status of objector a full fledge enquiry like in a suit would be warranted. A contrary view would amount to permitting abuse of process of law. Objector's status that she claims through Judgment Debtor is clear and is seen even without enquiry of any time for the purpose of lifting veil."

Bombay High Court

 Shri Dinkar s/o Bhagwantrao Khati v Prabhakar son of Nanaji Kale on 8 August, 2008

Bench: A. B. Chaudhari

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Whether objector can be permitted to urge pleas which would require re- opening of decree on concluded issues?

It must be borne in mind that the jurisdiction under section 47 of the C.P.C. conferred on the Executing court is limited and narrow. The liberty to object to the executability and enforceability of a decree by raising objections before the executing court, does not mean that the objector can re-open the matter and the proceedings. That is not intended by the Legislature. He is not permitted to urge such pleas and matters which would require re- opening of the decree on concluded issues. In other words, this jurisdiction cannot be equated with that of an Appeal or Review. It being extremely limited and narrow, the objections must fall within the ambit and scope of the same. If they fall outside the purview of the said limited power, then, the executing court is not empowered to take note of them.

Bombay High Court

Smt.Savitribai A. Salvi vs Smt.Suman Navgire.

Bench: S.C. Dharmadhikari

JUDGEMENT PRONOUNCED ON 12th June 2009 

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