UTTAM CHAND Vs. KAMLO DEVI

JUDGEMENT

(1.) Suit for possession filed by Tej Ram, Predecessor-in-interest of the present petitioners, was decreed by the Court of Munsiff, Haranagar on 14-5-1983. The execu-tion application filed in the case was dismis-sed by the executing Court holding that as the decree of possession pertaining to one story shop which, in fact, did not exist, same could not be executed. The Nazir, who went to execute the decree had reported that the shop as described in the decree did not exist on the spot and the site was in the shape of a Khola only, walls being in dilapidated condition. After holding, "This is a moot question of law that the executing Court had the power to examine the question as to the identity of the property i.e., the subject of the decree which it is executing" the executing Court held, "It cannot make out a new case for the decree-holder at his whims and pleasure by substitu-ting a new property in place of the one described in the decree" and ultimately dis-missed the execution application on 30-7-1986. The appeal preferred was also dismissed holding that the order passed by the executing Court was not an appealable order.

(2.) I have heard learned counsel for the parties and perused the record.

(3.) Section 47, C.P.C. provides that all questions arising between the parties to the suit in which the decree was passed or their representative 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. The pro-vision has been made in the Section with the object to enable the parties to obtain adjudi-cation on questions relating to execution without unnecessary expense or delay by filing a fresh suit. S. 47, therefore, embraces all matters connected with the execution of an existing decree, between the parties or their representatives and covers all questions speci-fied therein. The provisions of S. 47 are pre-emptory and the bar of suit under the Section applies not only where the question is raised by the plaintiff in the suit but also to questions as defence to the suit. The words "shall be determined" used in the Section are indicative of the fact that the Court has to adjudicate upon the questions relating to the execution, discharge and satisfaction of the decree after affording the parties an opportunity to prove their rival claims. It was held in AIR 1940 Patna 420, that the word 'determine" gives the Court executing the decree jurisdiction to dispose of finally such question by granting appropriate relief. The Supreme Court in Jugal Kishore Saraf v. M/s. Rao Cotton Co. Ltd., AIR 1955 SC 376, held (para 54 at p. 399 of AIR) :-