Case Note & Summary
The petitioners, original judgment debtors, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 29/01/2018 passed by the Civil Judge Junior Division, Sanguem, which dismissed their application under Section 47 of the Code of Civil Procedure, 1908 (CPC) in execution proceedings. The respondent No.1 was the decree holder. The petitioners conceded that a decree for permanent and mandatory injunction was passed against them on 30/11/2011. The executing court dismissed the Section 47 application, leading to the present petition. The High Court, after hearing the parties, found no merit in the petition and dismissed it, upholding the order of the executing court. The court noted that the decree was executable and the application under Section 47 CPC was rightly rejected.
Headnote
A) Civil Procedure Code - Execution of Decree - Section 47 CPC - Executability - The petitioners, as judgment debtors, filed an application under Section 47 CPC challenging the executability of the decree. The executing court dismissed the application. The High Court held that the decree was executable and the executing court had correctly dismissed the application. (Paras 4-6)
Issue of Consideration
Whether the order dated 29/01/2018 passed by the Civil Judge Junior Division, Sanguem dismissing the application under Section 47 CPC in execution proceedings was correct and sustainable.
Final Decision
The High Court dismissed the writ petition, upholding the order of the Civil Judge Junior Division, Sanguem dated 29/01/2018 dismissing the application under Section 47 CPC.
Law Points
- Section 47 CPC
- Executability of decree
- Res judicata
- Jurisdiction of executing court
- Article 227 of Constitution of India
Case Details
2019 LawText (BOM) (04) 162
Writ Petition No.347 of 2018
Shri Ashwin D. Bhobe for petitioners; Shri J.E. Coelho Pereira, Senior Advocate with Ms. Kajol Mangueshkar for respondents
Shri Narayan Waingankar, Mr. Gurunath Waingankar, Mr. Gayatri Waingankar (deceased represented by legal heirs), Mr. Santosh Waingankar, Mrs. Santosh Waingankar
Archdiocese of Goa & Daman, Mrs. Laxmi N. Waingankar
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Nature of Litigation
Writ petition under Article 227 of Constitution of India challenging order dismissing application under Section 47 CPC in execution proceedings.
Remedy Sought
Petitioners sought to set aside the order dated 29/01/2018 dismissing their application under Section 47 CPC.
Filing Reason
The petitioners, as judgment debtors, challenged the executability of the decree in execution proceedings.
Previous Decisions
The Trial Court passed a decree for permanent and mandatory injunction on 30/11/2011 against the petitioners. The executing court dismissed the Section 47 application on 29/01/2018.
Issues
Whether the order dismissing the Section 47 CPC application was correct.
Submissions/Arguments
Petitioners conceded the decree but argued that the decree was not executable. Respondent argued that the decree was executable and the application was rightly dismissed.
Ratio Decidendi
The executing court correctly dismissed the application under Section 47 CPC as the decree was executable against the judgment debtors.
Judgment Excerpts
The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India questioning the order dated 29/01/2018 passed by the Civil Judge Junior Division, Sanguem whereby the learned Trial Judge was pleased to dismiss the application filed by the petitioners under Section 47CPC in the execution proceedings filed against them.
Procedural History
The suit for permanent and mandatory injunction was decreed on 30/11/2011. Execution proceedings were filed. The petitioners filed an application under Section 47 CPC which was dismissed on 29/01/2018. The petitioners then filed the present writ petition under Article 227.
Acts & Sections
- Code of Civil Procedure, 1908: Section 47
- Constitution of India: Article 227
