Objections U/S 47 CPC Must Be Raised At Initial Stages, Cannot Be Entertained Once Court Has Issued Order For Effective Execution: J&K High Court

Furthermore, Justice Javed Iqbal Wani stressed that objections cannot be raised once the respondents have committed to implementing the judgment and decree.

The observations were made while hearing a plea filed by Dr. Abid Hussain challenging the order of Executing Court in an application filed by the respondents (judgment debtors) under Section 47 of the J&K Civil Procedure Code, declaring the decree obtained by Hussain as legally flawed and void from the beginning.

The case revolved around Dr. Abid Hussain, an Assistant Surgeon appointed in 1986, who faced unexpected termination of his services in 2002. Dr. Abid Hussain contested this termination, arguing that it was illegal and did not follow established legal procedures and the trial court ruled in his favor. Consequently, Dr. Abid Hussain filed an execution petition seeking the implementation of this decree.

During the execution proceedings, the respondents repeatedly requested additional opportunities and extensions of time to comply with the appellant's decree. However, they later filed an application under Section 47, claiming that the execution petition was time-barred because it was filed ten years after the date of the decree. This plea was accepted by the executing court, leading to the dismissal of the execution petition.

Challenging the impugned order on multiple grounds, the petitioner argued that the Executing Court overstepped its boundaries by delving into the merits of the case, declaring the judgment and decree void without understanding the genuine controversy.

The petitioner further argued that objections under Section 47 must be raised at the initial stages of the execution application and such objections cannot be raised once the court has exercised its jurisdiction and issued an order for effective execution.

Dealing with the matter at hand Justice Wani specified that the Section 47 of the Code has been enacted for the beneficial object of checking needless litigation and eliminating unnecessary delay. Highlighting the associated limitations, the bench added that the said section empowers the court executing the decree to determine all questions arising between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree and not the questions which ought to have been raised during trial, at the time of filing written statement, framing of issues or arguments.

Emphasising that objections under Rule 47 must be raised early in the execution application process the bench maintained that such objections cannot be raised once the court has already issued an order for effective execution or when the respondents have committed to implementing the judgment and decree.

Observing that the Executing Court has adjudicated and declared the decree as void ab-initio on the grounds which were never the issue for consideration before the trial court in the first instance the court said,

“Executing Court has further gone to observe that this court has acted as a mute spectator and has not utilized its powers to ascertain the reasons as to why the Petitioner remained absent from his duties for a pretty long time…The trial court was obligated only to deliberate over the legality or otherwise of the order impugned before it and not about the alleged conduct of the Petitioner which constrained the Respondent to pass the termination order”.

Spotlighting the misapplication of the ration in Bhavan Vaja v. Solanki Hanuji Khodaji Mansang (AIR 1972 SC 1371), Justice Wani said that the referenced case specifically dealt with interpreting decrees with vague or ambiguous content. The Executing Court incorrectly relied on it to challenge the validity or legality of the decree as the judgment's context was to address vague decrees, not to grant executing courts authority to question decree validity, the bench underscored.

Deliberating further Justice Wani emphasized that the Executing Court overstepped its authority by reevaluating the case's merits, already decided by the original jurisdiction court and the Executing Court had inappropriately examined the validity of the petitioner's leave, a matter reserved for the original court. If the respondents had concerns, they should have addressed them during the trial or appealed the decision later, the bench remarked.

“The court that passed the original decree cannot undo it at the stage of execution”, the bench maintained.

Commenting on the observations of the executing court in the impugned order for having termed the execution petition as time-barred, the court noted that the petitioner's first execution petition, filed within the time frame, was dismissed due to non-prosecution. The second petition, filed on 18.07.2018, fell within the three-year limit as per Article 182 of the J&K Limitation Act and hence the Executing Court's ruling on the time bar lacked proper consideration and was erroneous.

In view of the same the court upheld the petitioner's claims and set aside the impugned order. The respondents' application under Section 47 was dismissed, and the Sub-Judge/Chief Judicial Magistrate, Srinagar, was directed to resume proceedings from the previous stage in the execution petition.

Case Title: Dr. Abid Hussain Vs State (now Union Territory) of J&K

Citation: 2023 LiveLaw (JKL) 279

Counsel For Petitioner: Mr. Hakim Suhail Ishtiaq, Advocate.

Counsel For Respondent: Mr. Sajad Ashraf, GA

Click Here To Read/Download Judgment