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2008 DIGILAW 537 (BOM)

Sarojini Nunes v. Lennet Godinho

2008-04-10

S.A.BOBDE

body2008
JUDGMENT :. Rule is made returnable forthwith. Heard by consent. 2. The respondent Nos. S, 9. 10 though served, remained absent. The only contention raised on behalf the learned Counsel for the petitioner is that the Court ought not to have set aside the petitioner's contention that the respondent's objection did not relate to the execution, discharge or satisfaction of the decree and, therefore, there was no need to hold enquiry into the said objections. It appears that the executing Court has not expressed its opinion whether the respondent's objections are pertaining to the execution, discharge or satisfaction of the decree which is the true scope of Section 47 of the Code of Civil Procedure. 3. In this view of the matter, I consider it appropriate in the interest of justice to set aside the impugned order and to direct the executing Court that it shall first go into the question whether the objections raised by the respondents are tenable u/s.47 of the Code of Civil Procedure and thereupon if the answer is affirmative, the Court shall make an enquiry as contemplated by the earlier order. The executing Court is, however, at liberty to permit the evidence to be led for the purpose of determining whether the objections are pertaining to execution, discharge or satisfaction of the decree if it is of the opinion that such evidence is necessary before it can be held that the objections relate to execution, discharge or satisfaction of the decree or otherwise. 4. Rule is made accordingly. The writ petition disposed of. Petition allowed.