NDLI: Pradeep Mehra Vs. Harijivan J. Jethwa (since Deceased Thr. Lrs.) & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Code of Civil Procedure 1908
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Issue for consideration:Matter pertains to the delay being caused to the executionproceedings u/ord. XXI CPC, and the process being abused in theexecution proceedings, to the peril of the decree holder.Code of Civil Procedure, 1908 – s. 47 – Questions to bedetermined by the court executing decree – Scope and ambit of:Held: All questions between the parties can be decided by theexecuting court – These questions are limited to the execution ofthe decree – Executing court can never go behind the decree –Under s. 47 the executing court cannot examine the validity of theorder of the court which had allowed the execution of the decreeunless the court’s order is itself without jurisdiction – Appellatecourt, the second appellate court and the revisional court do nothave the same powers, as the powers of the executing court,which are extremely limited. [Para 5]Code of Civil Procedure, 1908 – s. 47 – Execution of decree –Four years after the pronouncement of the order of executionof decree which had attained finality, the judgment debtorsfiled an application before the executing court challengingthe execution of decree – Decree holder challenged themaintainability of the application and the same was allowed –In revision, the said order was set aside – Decree holder thenfiled a writ petition on the ground that the revisional courterred in holding that the application moved by the judgmentdebtors for setting aside the order of execution comes withinthe purview of the power of the executing court u/s 47; andthat the said order attained finality and res judicata wouldapply against the judgment debtors – Dismissed by the HighCourt – Correctness:Held: Executing court rightly allowed the objections of the decreeholder and dismissed the application filed by the judgementdebtors – An execution proceeding works in different stages andif the judgment debtors have failed to take an objection and haveallowed the preliminary stage to come to an end and the matterhas moved to the next stage, the judgment debtors cannot raisethe objection subsequently, and revert back to an earlier stage ofthe proceeding – Executing court gave the said reasons in its order– Merely, because it did not specifically refer to the principle of resjudicata would not make any difference – High Court though foundsubstance in the arguments of res judicata, nevertheless refusedto interfere in the petition – High Court erred by not interferingin the matter – Order passed by the appellate court and by theHigh Court not sustainable thus, set aside while the order of theexecuting court is upheld – Res judicata. [Para 8]Code of Civil Procedure, 1908 – s. 47 – Exercise of powerunder – Execution of a decree – Inordinate delay and slowprocess in the execution of a decree – Concern expressedby the Supreme Court – Direction to the executing court tocomplete execution within six months. [Para 6]Res judicata – Principles of - Applicability:Held: Principles of res judicata are not only applicable in respect ofseparate proceedings but the general principles of res judicata arealso applicable at the subsequent stage of the same proceedingsand thus, the same court would be precluded to go into thatquestion which has already been decided, or deemed to havebeen decided by it in the earlier stage – It would be barred by theprinciple of res judicata, or at least by the principle of constructiveres judicata. [Para 7]
Judge	Hon'ble Mr. Justice Sudhanshu Dhulia
Neutral Citation	2023 INSC 958
Petitioner	Pradeep Mehra
Respondent	Harijivan J. Jethwa (since Deceased Thr. Lrs.) & Ors.
SCR	[2023] 14 S.C.R. 123
Judgement Date	2023-10-30
Case Number	6375

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Pradeep Mehra Vs. Harijivan J. Jethwa (since Deceased Thr. Lrs.) & Ors.

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