TaxTMI 
TaxTMI 
2023 (10) TMI 1529
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....ed a decree" Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC OnLine PC 16 : (1871-72) 14 Moo IA 605 at page 612 . The situation, we are afraid, is no better even today. 2.The appellant is the landlord and the respondents are the tenants in a premises measuring about 3240 sq. ft. bearing C.T.S. No(s). 691/2, 691/3, 691/6, 691/7 and 691/8, situated at Mehra Industrial Compound, Andheri-Kurla Road, Sakinaka, Mumbai (hereinafter referred to as 'suit property'). We will also be referring to them as the decree holder and the judgement debtors respectively. The landlord, who is more than 70 years of age as of now, had filed a suit for eviction which ultimately resulted in a consent decree on 11.06.2005 where inter alia, it was stipulated that in case the judgment debtors (i.e., tenants) fail to pay the rent for two consecutive months, they could be evicted as the decree would become liable for execution. 3. The tenants evidently committed a default in payment of rent, and on an application moved by the decree holder, the court vide its order dated 12.02.2013 allowed the application holding that the decree holder/appellant is entitled to execute the decree. Meanwhile, for one r....
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....is representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section. 5.A bare perusal of the aforesaid provision shows that all questions between the parties can be decided by the executing court. But the important aspect to remember is that these questions are limited to the "execution of the decree". The executing court can never go behind the decree. Under Section 47, CPC the executing court cannot examine the validity of the order of the court which had allowed the execution of the decree in 2013, unless the court's order is itself without jurisdiction. More importantly this order (the order dated 12.02.2013), was never challenged by the tenants/judgment debtors before any forum. The multiple stages a civil suit invariably has to go through before it reaches finality, is to ensure that any error in law is cured by the higher court. The appellate court, the second appellate court and the revisional court do not have the same powers, as the powers of the executing court, which are extremely limited. This was explained by this Court in Dhurandhar Prasad Singh v. Jai Prakash University and Others....
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....all the High Courts to update and amend their Rules relating to the execution of decrees so that the decrees are executed in a timely manner. As far as Section 47 is concerned, this Court had stated as under: "24. In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible. 25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree. However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisa....
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....f this order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of information technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable." We have referred to the above decision of this Court only to highlight the slow process in the execution of a decree and the concern of this Court, and its efforts in the past, to improve this situation. 7. The respondents herein are the tenants in the suit property at least since 1996. The present appellant is the landlord. The dispute between them was of sub-letting which led to the eviction suit before the Small Causes Court. During the proceedings, a settlement was arrived at between the parties, inter alia stipulating that the tenants would be liable for eviction if they commit a default of payment of rent for two successive months. According to the appellant / landlord, the tenants committed a default which led to the filing of the application under Order XXI Rule 11, CPC for execution of the decree. The executing court vide its order dated 12.02.2013 held that th....
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....n appeal against its own order. Also, it is not the case of the judgment debtor no. 1(a) to 1(e) and judgment debtor no. 2, that the order dated 12.02.2013 passed by my learned predecessor in Misc. Notice no. 152 of 2006 was passed without jurisdiction. Also, the ground of fraud or ex-parte passing the order dt 12.02.2013 is not raised by the judgment debtor no. 1(a) to 1(e) and judgment debtor no. 2 in the application Exh. 18. The Misc. Notice No. 152 of 2006 was decided on merits after due hearing both sides and the said order is not challenged before the appropriate appellate/revisional forum. If the said fact is considered, there can be hardly any doubt that the application Exh. 18 taken out by the judgment debtor no. 1(a) to 1(e) and judgment debtor no. 2 is nothing but an attempt to re-open the order passed on 12.02.2013 in Misc. Notice no .152 of 2006 under the garb of objection to the execution of decree which is not permissible particularly when already the said notice is decided on merit and is not challenged till date. Considering the said fact, I have no hesitation to hold that, the application Exh. 18 is not maintainable." As we have already referred above, this orde....