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2021 DIGILAW 1426 (ALL)

Ram Nayan v. Civil Judge (Sr. Div. ) Ambedkar Nagar

2021-11-26

J.J.MUNIR

body2021
JUDGMENT : 1. The petitioner has applied under Article 227 of the Constitution to set aside the proceedings of Execution Case No. 9 of 2017, Ram Ujagir v. Vinod, pending on the file of the learned Civil Judge (Senior Division), Ambedkarnagar. The decree, whereof execution is now sought, was passed in a partition suit that is dreadfully ancient. The suit is Original Suit No. 138 of 1925. The preliminary decree in the suit was passed on 07.12.1926. The petitioner, who appears to be a successor of one of the defendants to the suit and a judgment-debtor, is at issue with the respondents, who are the successors or assigns of the plaintiff or the decree holders. The issue is about the bar of limitation to the execution of the final decree. According to the petitioner, the final decree was passed on 18.01.1988, whereas, according to the respondents, it was passed on 04.01.1996. It appears that this wide variation in dates comes about on account of the time spent in depositing the requisite court fee payable on the shares of parties. This Court does not wish to express any opinion about the date on which executable final decree for partition came into existence. 2. The proceedings for execution were instituted on 12.01.2011 before the Court of Civil Judge (Senior Division), Faizabad. On 12.01.2011, the execution case was registered on the file of the learned Civil Judge (Senior Division) Faizabad as Execution Case No. 13 of 2011. Later on, considering the fact that the property to be partitioned was located within the territorial jurisdiction of the Court at Ambedkarnagar, a district that was carved out later from the area of Faizabad, the decree was sent for execution by the Civil Judge (Senior Division), Faizabad to the District Judge, Ambedkarnagar through a memo dated 16.05.2017. The case was assigned by the District Judge to the Civil Judge (Senior Division), Ambedkarnagar, where it was registered as Execution Case No. 9 of 2017. In this execution, the petitioner filed objections under Section 47 CPC, raising a plea about the bar of limitation. The Civil Judge (Senior Division), Ambedkarnagar declined to entertain this objection on ground that the Court at Ambedkarnagar is in seisin of the execution that has been sent to it merely for execution of the decree by the Court at Faizabad. In this execution, the petitioner filed objections under Section 47 CPC, raising a plea about the bar of limitation. The Civil Judge (Senior Division), Ambedkarnagar declined to entertain this objection on ground that the Court at Ambedkarnagar is in seisin of the execution that has been sent to it merely for execution of the decree by the Court at Faizabad. As such, in the opinion of the Civil Judge (Senior Division), Ambedkarnagar, he had no jurisdiction to stay or defer execution. The objection under Section 47 was not entertained, and the application for stay was rejected vide order dated 01.09.2018. 3. The petitioner thereupon moved an application before the Civil Judge (Senior Division), Faizabad in Execution Case No. 13 of 2021, seeking to summon the records of Original Suit No. 138 of 1925 on the basis of whatever legal advice he received. The Court declined to entertain any application in Execution Case No. 13 of 2011, inasmuch as in the opinion of the Civil Judge (Senior Division), Faizabad, the execution had already been transferred to the Court at Ambedkarnagar, leaving the Court at Faizabad with no jurisdiction to pass any orders in relation to it. 4. The substance of the petitioner's grievance is that his plea about the bar of limitation to execution has not been examined by the Court either at Ambedkarnagar or Faizabad, when, according to him, he has a substantial case to resist execution on that ground. It is in those circumstances that he has applied to this Court to judge his plea about the bar of limitation on merits, going by the apparent calendar of dates and the way the law of limitation would apply. 5. I have heard Mr. Shobh Nath Pandey, learned Counsel for the petitioner and Mr. Badrish Tripathi, learned Counsel for the respondents. 6. Section 42 Code of Civil Procedure, 1908 that deals with powers of the Court in executing a transferred decree in its application to the State of U.P. vide U.P. Civil Laws Amendment Act, 1970 reads : 42. Power of Court in executing transferred decree-(1) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. Power of Court in executing transferred decree-(1) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the decree shall be punishable by such Court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself. (2) Without prejudice to the generality of the provisions of sub-section (1), the powers of the Court under that sub-section shall include the following powers of the Court which passed the decree namely : - (a) power to send the decree for execution to another Court under Section 39; (b) power to execute the decree against the legal representative of the deceased judgment-debtor under section 50; (c) power to order attachment of a decree. (d) power to decide any question relating to the bar of limitation to the executability of the decree; (e) power to record payment or adjustment under Rule 2 of Order XXI; (f) power to order stay of execution under Rule 29 of Order XXI; (g) in the case of a decree passed against a firm, power to grant leave to execute such decree against any person other than a person as is referred to clause (b) or clause (c) of sub-rule (1) of Rule 50 of Order XXI. (3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree. (4) Nothing in this section shall be deemed to confer on the Court to which a decree is sent for execution, the power to order execution at the instance of the transferee of a decree. 7. A perusal of the provisions of Section 42 CPC makes it pellucid that an Executing Court to which the decree is transferred for execution has all the powers of the Court originally possessed of the jurisdiction to execute it. The Court to which a decree is sent for execution under Section 42 would a fortiori have the power to entertain objections to execution, which the Court originally possessed of jurisdiction would have. The Court to which a decree is sent for execution under Section 42 would a fortiori have the power to entertain objections to execution, which the Court originally possessed of jurisdiction would have. Here, the objections raised by the petitioner is about the bar of limitation to execution, which is a question that prima facie relates to execution, discharge or satisfaction of the decree and by virtue of the terms of Section 47 is required to be decided between parties to the suit by the Court executing the decree and not by a separate suit. There is no reason to hold as the learned Civil Judge (Senior Division), Ambedkarnagar appears to have done that the Court, to which a decree is transferred for execution, is charged with the task alone of executing it, and not performing the other duties of the court of execution. The law appears to be clear that the Court to which a decree is transferred under Section 42 has all the powers and jurisdiction of the Court that originally had jurisdiction to execute the decree and which has been transferred to forum for execution. The approach of the Civil Judge (Senior Division), Ambedkarnagar reflected from his order dated 01.09.2018 cannot be countenanced. 8. The order dated 01.09.2018 has not formally been challenged by the petitioner in the present petition. The petition here before us is one under Article 227 of the Constitution and invests this Court with powers of the widest amplitude to superintend the functioning as well as orders made by the Subordinate Courts or Tribunals. This Court, therefore, is of opinion that the order dated 01.09.2018 passed by the Civil Judge (Senior Division), Ambedkarnagar is one that deserves to be ignored. The relief that the petitioner has sought here, however, cannot be granted. The reason is that it is for the Executing Court in the first instance to go into the question of the executability of the decree, which includes a plea of limitation raised by the judgment debtor. The relief that the petitioner has sought here, however, cannot be granted. The reason is that it is for the Executing Court in the first instance to go into the question of the executability of the decree, which includes a plea of limitation raised by the judgment debtor. Seen in this perspective, we are of opinion that while the prayer to set aside the proceedings of Execution Case No. 9 of 2017, Ram Ujagir v. Vinod pending before the Civil Judge (Senior Division), Ambedkarnagar have to be declined, the Civil Judge (Senior Division), Ambedkarnagar should be directed to entertain the petitioner's objection to the pending execution that he may now prefer under Section 47 CPC or to proceed with an already pending objection and decide the same in the same manner as any other court of execution. It is ordered accordingly. 9. It is of utmost necessity, in the peculiar circumstances of this case, that this almost century old litigation should now come to an end. The Executing Court will proceed to adjudicate whatever objections are raised to the execution and decide the same within a period of six months, in accordance with law. 10. It is made clear that this Court has not expressed any opinion on merits whether the execution is barred by limitation or not. It is for the Executing Court to examine this question, uninfluenced by anything said in this order on that count. 11. This petition is disposed of in terms of the orders aforesaid.