V GURUNATHAN Vs. P MUNUSAMY

JUDGEMENT

(1.) ONE Pachaipappa Mudaliar borrowed a sum of Rs.5,000 and executed a simple mortgage in favour of one Alamelu Ammal, the second respondent herein, in respect of the property in question. The said property was brought for sale through auctioneers, by the petitioner herein, and the auction was conducted on 31.5.1979. The petitioner was the successful bidder for a sum of Rs. 7,100. Thereafter to take possession of the property, the petitioner filed O.S.No.1247 of 1980, on the file of the City Civil Court, Madras. That suit was resisted by the second respondent herein and the first respondent, as second and seventh defendants. After considering the points raised before the trial court in the decree dated 22.4.1985, the trial court decreed the suit as prayed for and directed the defendants 6 and 7 therein to deliver vacant possession of the suit property to the plaintiff/petitioner. After obtaining the decree, the petitioner filed E.P.No.2292 of 1990 to execute the same. In the said execution petition, the first respondent herein filed E.A.No.3939 of 1991 under Sec.47 of the Code of Civil Procedure to declare the decree in O.S.No. 1247 of 1980 as unexecutable and dismiss the said execution petition. The same was resisted by the petitioner. The court below though rejected all other points raised by the first respondent has accepted the case of the first respondent, in view of the decree passed in O.S.No.1495 of 1979 and the order of injunction passed therein pending the suit, and thereby decided that the decree obtained by the petitioner herein cannot be executed. Aggrieved against the same, the petitioner has filed the above revision.

(2.) AS stated earlier, after purchasing the property in question, to get possession from the mortgagee, the petitioner filed O.S.No.1247 of 1980, That was decreed on 22.4.1985. The first respondent filed appeal against the decree passed in favour of the petitioner, in A.S.No.373 of 1986, That was also dismissed on 1.7.1987. In the meanwhile, one Pachaiappan, the father of the first respondent filed a suit in O.S.No.1495 of 1979. Pending the suit, he died and the first respondent and one Yasodammal were impleaded as his legal representatives. That suit was decreed on 15.9.1983. It is not in dispute that the respondents did not take steps to execute that decree.

(3.) FURTHER, Srinivasan, J., as he then was, in A. V.Hanifa v. Salima Dhanu, A.I.R. 1992 Mad 111, has held as follows: "Learned counsel for the petitioner submits that under Sec.47(l), Civil Procedure Code all questions arising between the parties to the suit in which a , decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. Learned counsel wants me to interpret this section as meaning that any question which is raised by a party to the suit should be considered by the executing court if it relates to execution, discharge or satisfaction of the decree. Such a wide interpretation is unsustainable. When the Section refers to all questions it only means all questions which were not raised in the suit and decided by the trial court. If a question was raised before the trial court at the stage of trial and decided by the trial court it is not open to the parties to raise it again at the stage of execution. Similarly, if a question ought to have been raised by a party before the trial court at the stage of trial and if he omits to raise it, even then he cannot raise it under Sec.47 before the executing court."