STATE OF BIHAR Vs. SAMRENDRA KUMAR DUTTA

JUDGEMENT

(1.) THE present petition has been filed against the order dated 29.11.2006 passed by learned Sub-Judge-I, Dhanbad in Misc. Case No. 7 of 2002 arising out of Execution Case No. 7/1997 in the Court of Sub-Judge-I, Dhanbad.

(2.) HEARD the learned counsel for the parties and perused the impugned order.

(3.) ON perusal of the order dated 20.11.2006 passed by the Court below in Misc. Case No. 7/02, it appears that the Court below has passed the said order after careful consideration of the submission made by the present petitioner as well as Opp. Party. It appears that the court below has passed the said order after careful consideration of the provisions contained in Section 47 C.P.C., As discussed above, the money decree passed by the competent court having jurisdiction was before the executing court for its execution. The earlier execution proceeding filed by the judgment creditor was dismissed for want of prosecution and therefore there was no adjudication on merit and therefore, the judgment creditor has filed another execution proceeding for execution of the said money decree. The point raised by the present petitioner that the said money decree was passed ex parte without affording an opportunity to the defendant has been rightly and properly appreciated by the court below while dealing with the said application filed under Section 47(1) of the C.P.C. The executing court has to execute the decree passed by the competent Civil Court and the executing Court can not go beyond the decree. The contention raised by the present petitioner can be raised by them by way of filing proper proceeding, so far as application under Section 47(1) CPC is concerned. The view expressed and taken by the learend court below is appears to be in consonance with the provisions of Section 47(1) CPC. Since there was no decision on merit in Execution Case, principle of res judicata shall not be applicable and, therefore the court below has rightly and properly considered the issue involved in this case. Therefore this Court is of the view that the learned Court below has not committed any irregularity and illegality while passing the order impugned and therefore, the intervention of this Court is not called for.