'Challenge To Decree As Nullity Due To Abatement Must Be Raised Before Executing Court U/S 47 CPC, Not By Separate Suit': Bombay High Court
The Bombay High Court has held that an objection to the execution of a decree on the ground that it is a nullity by reason of abatement of the suit has to be adjudicated by the executing Court under Section 47 of the CPC and cannot be raised by way of a separate suit. The Court observed that Section 47 and Order XXI Rules 97 and 101 vest the powers in executing court to decide the question...
The Bombay High Court has held that an objection to the execution of a decree on the ground that it is a nullity by reason of abatement of the suit has to be adjudicated by the executing Court under Section 47 of the CPC and cannot be raised by way of a separate suit. The Court observed that Section 47 and Order XXI Rules 97 and 101 vest the powers in executing court to decide the question of undivided right, title and interest of the Plaintiffs in the subject property.
Justice Sharmila U. Deshmukh was hearing an Appeal From Order filed by the original Plaintiffs against an order dismissing their Notice of Motion in a suit which sought a declaration that a judgment and decree passed in an earlier suit was null and void and not binding on the plaintiffs, because of an order of abatement. The Plaintiffs also sought an injunction against execution of the decree passed in the earlier suit. The Trial Court dismissed the suit on the ground that all questions relating to execution are required to be dealt with by the executing court and not by a separate suit.
The Plaintiffs contended that Section 47 CPC would not apply as they were not parties to the earlier suit and that Order XXI Rule 97 CPC would also not apply as they had not obstructed execution. They submitted that the cause of action arises by reason of infringement of the Plaintiffs' independent civil right which is not a dispute relating to execution and if execution is permitted to be proceeded with, the valuable inherited property will be attached and the suit will be rendered infructuous.
The Court noted that the Plaintiffs claimed an undivided share in the suit property under Muslim Law of Inheritance and sought to assail the earlier proceedings as null and void. It observed that the Plaintiffs had been impleaded as legal heirs and they are seeking the substantive relief of the decree being nullity qua late Abdul Quaiyum Khan for the reason that the suit has abated against him.
The Court held that Section 47 of CPC provides that not only the parties to suit but even their representatives can agitate all questions relating to execution before executing Court. It further observed that Order XXI Rule 101 provides that all questions including questions relating to right, title or interest in the property, arising between the parties to the proceedings or their representatives, shall be determined by the Court dealing with the application and not by way of a separate suit.
The Court refuted the contention that since no application was filed under Order XXI Rule 97, the said provisions will not apply, noting that the suit is in effect an application for resisting or causing obstruction to the possession of the immovable property sought by Defendant No.1 in execution proceedings.
“… the provisions of Order XXI Rule 97 would enable the executing court to adjudicate the independent undivided right claimed by the Plaintiff and the claim in the suit property, the decree being nullity… This determination cannot be by way of a separate suit and is required to be adjudicated by the executing Court,” the Court remarked.
Applying these principles, the Court held that the issues raised by the Plaintiffs by way of a separate suit were required to be raised by an application under Order XXI Rule 97 before the executing Court. It held that the Civil Court in the present suit was not competent to adjudicate upon the validity of the right, title and interest in the subject property.
Holding that the Trial Court had rightly dismissed the Notice of Motion seeking stay of the execution proceedings, the Court dismissed the Appeal.
Case Title: Maijabeen Abdul Quaiyum Khan v. M/s. Ajit Developer Pvt. Ltd. [Appeal From Order (St.) No. 14178 of 2026]