Search Results Page
Search Results
1 - 7 of 7 (0.38 seconds)The Code of Civil Procedure, 1908
Article 227 in Constitution of India [Constitution]
Dhurandhar Prasad Singh vs Jai Prakash University And Ors on 24 July, 2001
5.A bare perusal of the aforesaid provision shows that all questions
between the parties can be decided by the executing court.
But the important aspect to remember is that these
questions are limited to the “execution of the decree”. The
executing court can never go behind the decree. Under
Section 47, CPC the executing court cannot examine the
validity of the order of the court which had allowed the
execution of the decree in 2013, unless the court’s order is
itself without jurisdiction. More importantly this order (the
order dated 12.02.2013), was never challenged by the
tenants/judgment debtors before any forum.
The multiple stages a civil suit invariably has to go
through before it reaches finality, is to ensure that any
error in law is cured by the higher court. The appellate
court, the second appellate court and the revisional court
do not have the same powers, as the powers of the
executing court, which are extremely limited. This was
6
explained by this Court in Dhurandhar Prasad Singh v.
Jai Prakash University and Others (2001) 6 SCC 534,
in para 24, it had stated thus:
Barkat Ali & Anr vs Badri Narain (D) By Lrs on 6 February, 2008
In support of
the submission the decree holder relied upon a decision of
this court given in Barkat Ali & Anr. vs. Badrinarain (D)
by Lrs. 2008 (4) SCC 615, where this court reiterated the
settled position of law that the principles of res judicata are
not only applicable in respect of separate proceedings but
the general principles of res judicata are also applicable at
the subsequent stage of the same proceedings and
15
therefore the same court will be precluded to go into that
question which has already been decided, or deemed to
have been decided by it in the earlier stage. In other words,
it will be barred by the principle of res judicata, or at least
by the principle of constructive res judicata. The logic here
is that an execution proceeding works in different stages
and if the judgment debtors have failed to take an objection
and have allowed the preliminary stage to come to an end
and the matter has moved to the next stage, the judgment
debtors cannot raise the objection subsequently, and revert
back to an earlier stage of the proceeding. This is exactly
one of the reasons given by the executing court in its order
dated 28.09.2017 which we have already referred above.
Merely, because it has not specifically referred to the
principle of res judicata will not make any difference.
The High Court even though found substance in the
arguments of res judicata, nevertheless refused to interfere
in the petition.
Section 122 in The Code of Civil Procedure, 1908 [Entire Act]
Rahul S Shah vs Jinendra Kumar Gandhi on 23 November, 2021
In Rahul S. Shah v. Jinendra Kumar
Gandhi and Others (2021) 6 SCC 418, this Court had
observed that a remedy which is provided for preventing
injustice (in the Civil Procedure Code) is in fact being
misused to cause injustice by preventing timely
implementation of orders and execution of decrees. Then,
it had observed as under:
1