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Girdhari Lal Vs. Madan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Application Appeal No. 62 of 1967
Judge
Reported in4(1968)DLT435
ActsCode of Civil Procedure (CPC), 1908 - Sections 4 and 47
AppellantGirdhari Lal
RespondentMadan Lal
Advocates: S. Malhtora and; T.C. Chitkara, Advs
Excerpt:
.....with law against party against whom he is desirous of seeking relief - executability of decree determined on language of decree itself - case remanded back to executing court. - - it is interesting to point out that even the respondent-judgment-debtor's counsel has expressed his complete inability to support the learned district judge's order, by conceding that it is unsupportable in law. the executability of the decree has to be determined on the language of the decree itself, though of course, in certain circumstances, i can well imagine some supervening factors taking place afterwards which may make the executability of the decree physically impossible;.....without issuing ntoice to the decreeholder. (2) on an appeal having been taken before the the learned district judge, the lower appellate court agreed with the view of the law that an executing court cannto go behind the decree and enter into the controversy as to whether the relief granted under the decree arose out of the suit or was outside the scope of the suit a decree having been granted, the executing court, even, according to the learned district judge, was to execute it as such. the learned district judge also agreed with the submission of the decree-holder that it was incorrect to say that the decree could nto he executed because it contained any directory clause necessitating further enquiry or investigation. but suprisingly enough, after having so held, the learned.....
Judgment:

J.D. Dua, J.

(1) This civil revision puporting to have been presented under section 115 of the Code of Civil Procedure is directed against an order of the learned District Judge Simla, dared 10th May, 1967, allowing an appeal from the order of the learned Senior Subordinate Judge, disallowing objections under section 47, Code of Civil Procedure, presented by the judgment-debtor and holding that the executing court could nto go behind the decree. The objections were on this ground held nto to be maintainable. I am informed that this was done at the preliminary stage without issuing ntoice to the decreeholder.

(2) On an appeal having been taken before the the learned District Judge, the lower Appellate Court agreed with the view of the law that an executing Court cannto go behind the decree and enter into the controversy as to whether the relief granted under the decree arose out of the suit or was outside the scope of the suit A decree having been granted, the executing Court, even, according to the learned District Judge, was to execute it as such. The learned District Judge also agreed with the submission of the decree-holder that it was incorrect to say that the decree could nto he executed because it contained any directory clause necessitating further enquiry or investigation. But suprisingly enough, after having so held, the learned District Judge proceeded to observe that according to the judgment debtor, the Iicence granted in fauoar of the decree-holder Girdbari Lal has since been cancelled by the Municipal Committee and the judgment debtor had been granted a fresh license and for this reason the plea of non executabilitv of the decree required adjudication, and on this premise the case was remanded back to the executing Court with a direction that these proceedings be converted into a suit and the Municipal Committee be also im leaded as a party. I may here point out that the controversy relates to some. stall of which the Municipal Committee appears to have grinted alicense to the decree holder. There was apparently a kind of a partnership entered into between the decree holder and the judgment debtor, but the disputes having arisen, the matter was taken to Court in the form of a suit which resulted in a compromise decree, one of the terms of the decree being that the stall would be handed over by the judgment debtor to the decree-holder. It was in execution proacedings of this decree that the Judgment-debtor raised a number of objections which have given rise to the present proceedings in this Court.

(3) On behalf of the decree-bolder, it has been very strongly argued that there was ntohing wrong with the order of the learned Senior Subordinate Jndg coming to the conclusion that an executing Court is nto empowered to re-open the decree or to go into the merits of the decree. The only function which the executing Court had to perform was to execute the decree as framed. This submission is unexceptionable, for, in execution proceedings, the question us to whether the view of the Court passing the decree is right or wrong, is no longer open. This position has been settled since a long time on high authority buth of the Prive Council and of the Supreme Court. The only ground on which an executing can go bebind the decree is if the same can be shown to be a nullity in the sense of having been made by a Court possessing no inherent jurisdiction, That undoubtedly is nto the case here. It is of course trne that an executing Court can go into the question whether a decree as framed, is or is nto executable. But on that point, even the. learned District Judge has held against the judgment-debtor the judgmentdebtor has, however, tried to reopen thit finding, to which I will advert a little later.

(4) Oming now to the order of the learned District Judge sending the case back for directing an enquiry to be held to the question whether or nto the Municipal Committee has cancelled the license granted in favor of Girdhari Lal and a fresh license has been granted in favor of Madan Lal, in my opinion, this procedure is wholly unjustified on the facts and circumstances of this case. The direction to implead the Municipal Committee is still more objectionable. If the judgment debtor is desirous of having his right under any fresh license established, it is open to him to initiate fresh proceedings in accordance with law against the party against whom he is desirous of seeking relief, but to evolve this entirely new controversy out of proceedings in the executing Court, particularly when it involves re consideration of the merits of the original liseresultingt in the dacree, is Justifiad neither on principle nor on authority, an I of course no provision of any statute has been brought to my ntoice justifying this kind of a novl procedure. It is interesting to point out that even the respondent-judgment-debtor's counsel has expressed his complete inability to support the learned District Judge's order, by conceding that it is unsupportable in law. Section 47, Code of Civil Procedure, it may be remembered, deals with determination of questions arising between the parties to the suit in which the decree is passed, or their representatives, which relate to the execution, discharge or satisfaction of the decree. Anything which may have happened outside the litigated proceedings, which may give rise to some further independent rights in the contesting parties, cannto, ordinarily speaking, have any reasonable connection with the execution proceedings and the decrce as framed is liable to be executed, uninfluenced by any such consideration. The executability of the decree has to be determined on the language of the decree itself, though of course, in certain circumstances, I can well imagine some supervening factors taking place afterwards which may make the executability of the decree physically impossible; bit that again is nto the case here. For the reasons just stated the order of the learned District Judge deserves to be set a(r)ide and quashed.

(5) Coming to the plea raised on behalf of the judgment debtor that the decree is inexecutable, being declaratory, in my opinion, this is a matter which would certainly be open to the judgment debtor to canvass before the executing Court, which, I have no doubt, would, as it must, go into the plea, if it is properly raised there, in accordance with law. It appears that the objections preferred against the executability were mainly those which were concerned with the merits of the proceedings prior to the passing of the decree, which the executing 6ourt rightly held to be ordinarily beyond its competence in the execution proceedings. It is as a general rule only if the dscree is shown on its own frame and language to be inexecutable, that, the court would be empowered to go into such a plea.

(6) For the reasons foregoing. this revision is allowed and the order of the learned District Judge set aside. The case will now go back to the executing Court for further proceedings in accordance with law and in the light of the observations made above.

(7) It appears that in the present case, a second appeal was compe tent, the matter being covered by section 47 of the Code of Civil Procedure. It is nto understood why a revision was preferred. The responpent has also nto questioned its competence and it is again nto understood why no objection was raised in his behalf to that end. It is, however, always open to this Court, in the larger interests of justice, to treat a revision as an appeal, provided no prejudice is caused to the toher side and there is no toher legal impediment in its being so treated. As no such obstacle has been shown in this case, I have no hesitation in treating this revision as a second appeal, but this is a purely technical matter which does nto affect the merits of the controversy and I need say ntohing more on that score.

(8) In view of the peculiar circumstances of this case, there will be no order as to costs.


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