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State of U.P. and anr. Vs. Mahendra Tripathi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 214 of 1980
Judge
Reported inAIR1984All59
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantState of U.P. and anr.
RespondentMahendra Tripathi
Appellant AdvocateStanding Counsel and ;S.C. Verma, Adv.
Respondent AdvocateS.P. Srivastava, Adv.
DispositionRevision allowed
Excerpt:
.....of executing court - section 47 of code of civil procedure, 1908 - dispute regarding the executability of decree - clearly falling within the phrase 'relating to execution, discharge or satisfaction of decree' - in such a case jurisdiction of executing court could be invoked by judgement debtor under section 47. - - was entertainable once the executing court had disposed of the execution case, was erroneous in law and that the executing court had failed to exercise the jurisdiction vested in it under section 47, c. this submission is well founded. it is obvious that the question whether the decree was executable and if so, to what extent is clearly a question falling within the phrase 'relating to execution, discharge or satisfaction of the decree. as well as b......as the executing court, disposed of the execution case (no. 44 of 1978) striking out the execution application in full satisfaction of the decree.3. on march 3, 1979, an application purporting to be an objection under section 47, c. p. c. was moved on behalf of the state of u. p. in the court of the learned judge. several objections, including some to the executability of the decree as passed were raised in this application on behalf of the state. these objections were countered by tripathi who filed a reply thereto. one of the grounds taken by tripathi was that after the executing court had disposed of the case, it had become functus officio and was not competent to entertain an objection under section 47, civil p. c. this objection found favour with the learned judge and on.....
Judgment:
ORDER

V.K. Mehrotra, J.

1. Mahendra Tripathi, who is the decree-holder opposite party in this revision under Section 115, C. P. C. was employed with the State of U. P. in the Irrigation Department. His services were terminated. The order of termination was assailed by Sri Tripathi in a suit which eventually was heard and decided by the U. P. Public Services, Tribunal. The Tribunal set aside the order of termination and decreed the suit of Tripathi. At some stage, Tripathi was compelled to move the Tribunal for execution of the decree by making an application under Section 5 (7) of the U. P. Public Services Tribunals Act, During the proceedings before the Tribunal, the State Government sought some further time to calculate the exact amount which was payable to Tripathi. The prayer was, however, refused and a certificate was issued in favour of Tripathi.

2. Oil the basis of the certificate so issued, Tripathi sought to execute the decree in his favour. On February 16, 1979, Civil Judge. I, Gorakhpur, as the Executing Court, disposed of the Execution Case (No. 44 of 1978) striking out the execution application in full satisfaction of the decree.

3. On March 3, 1979, an application purporting to be an objection under Section 47, C. P. C. was moved on behalf of the State of U. P. in the Court of the learned Judge. Several objections, including some to the executability of the decree as passed were raised in this application on behalf of the State. These objections were countered by Tripathi who filed a reply thereto. One of the grounds taken by Tripathi was that after the executing Court had disposed of the case, it had become functus officio and was not competent to entertain an objection under Section 47, Civil P. C. This objection found favour with the learned Judge and on this ground alone, the objection filed by the State Government under Section 47 was dismissed. Then the present revision was filed by the State of U. P. in this Court.

4. Sri O. P. Gupta, appearing for the State of U. P. in this Court, has urged that the view of the executing court that no objection under Section 47, C. P. C. was entertainable once the executing court had disposed of the execution case, was erroneous in law and that the executing court had failed to exercise the jurisdiction vested in it under Section 47, C. P. C. by refusing to go into the objections raised by the State. This submission is well founded. Under Section 47, C. P. C. all questions 'relating to execution, discharge or satisfaction of the decree' are to be determined by the Court executing the decree and a separate suit for determination of these questions is expressly barred. It is obvious that the question whether the decree was executable and if so, to what extent is clearly a question falling within the phrase 'relating to execution, discharge or satisfaction of the decree.' As such, the jurisdiction of the executing court under Section 47, C. P. C. can be invoked by the judgment-debtor even though, for some reason, the executing court had disposed of the matter.

5. This position of law cannot be doubted and is fairly settled. See Dhan Kunwar v. Mahtab Singh, (1900) ILR 22 All 79 and Collector of Jaunpur v. Bithal Das, (1902) ILR 24 All 291 which were cases arising under Section 244 of the then operative Civil P. C. as well as B.B. Patankar v. C.G. Sastry : [1961]1SCR591 and M. P. Shrccvastava v. Veena : [1967]1SCR147 .

6. Sri S.P. Srivastva, appearing for Tripathi, attempted to urge certain grounds for the non-maintainability of the objection of the State of U. P. under Section Section 244, C. P. C. apart from the fact that the case had been transferred by the executing court when the application was made by the State of U. P. It is not necessary for me to go into them for the matter will be heard and decided on merits by the executing Court to which the case is being sent back.

7. The revision succeeds and is allowed. The order dated January 25, 1980 passed by the executing court is set aside and the matter is sent back to it for disposal in accordance with law. In the circumstances of the case, I would leave the parties to bear their own costs.


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