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2015 DIGILAW 30 (UTT)

Tek Chand v. Jagdish Parshad

2015-01-13

SUDHANSHU DHULIA

body2015
JUDGMENT Sudhanshu Dhulia, J. 1. Mr. Sanjeev Singh, Advocate, present for the petitioner. 2. The petitioner before this Court is a judgment debtor. A suit for specific performance was filed by the plaintiff in which the present petitioner was arrayed as defendant. This suit was numbered as Original Suit No. 43 of 1999. The suit which was ultimately transferred for trial was a Fast Track Court, namely, 3rd Fast Track Court, Haridwar where it was decreed on 16.09.2003. The decree holder promptly moved an execution case in the matter and the number of the execution case was Execution Case No. 01 of 2003. The defendant at the same time filed a first appeal being First Appeal No. 53 of 2003 against the decree and the decree was stayed, which remained so till the appeal itself was dismissed vide order dated 3rd July, 2013 by the learned Single Judge of this Court. Meanwhile the Fast Track Courts all over the State were abolished and the jurisdiction of this Court was transferred to competent court of Civil Jurisdiction or the as the case might be in other cases. All the matters which were pending before the 3rd F.T.C. were transferred to the Civil Judge, Senior Division. 3. After the dismissal of appeal, the decree holder moved a fresh execution case being Execution Case No. 11 of 2013, before the Civil Judge (Senior Division), Roorkee, Haridwar, in which an objection was raised by the judgment debtor under Section 47 of the Code of Civil Procedure that since already an execution case is pending being Execution Case No. 01 of 2003, the second execution case is not maintainable. This application/objection was dismissed. The objection was on the ground that the matter being subjudice it is barred by principle of res judicata or construction res judicata. The Court did not find that the objection of the judgment debtor are tenable and the objection of the defendant/judgment debtor was rejected. Aggrieved, the judgment debtor filed a civil revision which was ultimately dismissed on 23.08.2014. Aggrieved, the defendant/ judgment debtor has filed the present writ petition. 4. In view of this Court, in the normal course, the Court of first instance which passed a decree, the powers are vested with such said court are defined under Section 37 of the Code of Civil Procedure. Section 37 of the Code of Civil Procedure reads as under:- “37. 4. In view of this Court, in the normal course, the Court of first instance which passed a decree, the powers are vested with such said court are defined under Section 37 of the Code of Civil Procedure. Section 37 of the Code of Civil Procedure reads as under:- “37. Definition of Court which passed a decree — The expression "Court which passed a decree" or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include— (a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance. (b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. Explanation—The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.” 5. In view of the clear provision under Section 37 (b) read with Explanation of the Code of Civil Procedure, since by that time the decree had to be effectively executed, the trial court which passed the decree, which itself ceased to exist and since the execution proceedings were stayed in the pending appeal before this Court, effective jurisdiction as far as the execution case No. 01 of 2003 is concerned, the jurisdiction now was definitely with the Civil Judge (Senior Division) before whom second execution case no. 11 of 2013 was filed. 6. The learned counsel for the petitioner has alleged that there was no occasion for moving the second execution case as the first execution case being Execution Case No. 01 of 2003 was pending. 11 of 2013 was filed. 6. The learned counsel for the petitioner has alleged that there was no occasion for moving the second execution case as the first execution case being Execution Case No. 01 of 2003 was pending. Be that as it may, even if the second application has been moved and now particularly in view of the fact that vide order dated 3rd July, 2014 an application itself was moved by the decree holder withdrawing his first execution case on which no objection was raised by the judgment debtor, there is absolutely no anomaly. Even otherwise also, filing the second execution case, at best it can be an irregularity which is liable to be condoned. 7. The writ petition has absolutely no merit. It is hereby dismissed in limine.