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A.V. Mohamed Ali Sahib Vs. Naina Mohammed Maracair - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1982)2MLJ300
AppellantA.V. Mohamed Ali Sahib
RespondentNaina Mohammed Maracair
Cases ReferredM.P. Shreevastava v. Mrs. Veena
Excerpt:
- .....the defendant/judgment-debtor in o.s. no. 139 of 1979 on the file of the court of the subordinate judge, tindivanam against the order passed in e.a. no. nil of 1980 rejecting his application filed under section 47 of the code of civil procedure for wiping out of the decree as per act xiii of 1980. the lower court by means of a short order dismissed the application on the ground that the application under section 47, civil procedure code, can be filed only in the court executing the decree and since no execution petition has been filed the application was found to be premature.2. on behalf of the revision petitioner it is contended that as per section 47, civil procedure code, all matters arising in execution can be decided by the court. he also relies upon the case reported in m.p......
Judgment:
ORDER

R. Sengottuvelan, J.

1. This civil revision petition is filed by the defendant/judgment-debtor in O.S. No. 139 of 1979 on the file of the Court of the Subordinate judge, Tindivanam against the order passed in E.A. No. Nil of 1980 rejecting his application filed under Section 47 of the Code of Civil Procedure for wiping out of the decree as per Act XIII of 1980. The lower Court by means of a short order dismissed the application on the ground that the application under Section 47, Civil Procedure Code, can be filed only in the Court executing the decree and since no execution petition has been filed the application was found to be premature.

2. On behalf of the revision petitioner it is contended that as per Section 47, Civil Procedure Code, all matters arising in execution can be decided by the Court. He also relies upon the case reported in M.P. Shreevastava v. Mrs. Veena : [1967]1SCR147 , where the Supreme Court observed that in so far as the proceedings under Section 47 are concerned the expression 'Court executing the decree' occurring in Section 47 does not mean only a 'Court which is seized of an application for execution of a decree at the instance of the decree-holder'. A question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and the pendency of an application for execution by the decree-holder is not a condition precedent fair the exercise of the Court's power under Section 47. In view of the above decision the order of the learned Subordinate Judge of Tindivanam cannot be sustained. Hence the civil revision petition is allowed and the matter is remitted to the learned Subordinate Judge of Tindivanam for fresh disposal in the light of the observation made above. The learned Subordinate Judge, Tindivanam is directed to take the application on file and dispose of the matter on merits. There will be no order as to costs.


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