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Shanti Ram Vs. Kali Dass - (High Court of Himachal Pradesh) (28 May 2019)

Court can make adjudication on admitted facts, while deciding objections in an execution petition



In present case, Respondent-Kali Dass filed a suit for permanent prohibitory and mandatory injunction against present Petitioner. Said suit was decreed by the Court of learned Civil Judge vide judgment and decree. Decree holder filed an application for execution of the said decree. Present Petitioner preferred objections against the same. Learned Executing Court vide order disposed of the objections of the present Petitioner by dismissing them.

The order passed by learned Executing Court has been primarily assailed before present Court on the ground that, it was mandatory for learned Executing Court to have framed Issues on the objections filed and thereafter the parties should have been directed to lead their witnesses and in the absence of said procedure having been followed by learned Executing Court, the impugned order was not sustainable in law.

Though it is correct that as per Section 47 of the Code of Civil Procedure, 1908 (CPC) all questions arising between the parties in the suit in which decree has been passed as also those relating to the execution of the decree in issue are to be determined by the executing Court, but whether or not Issues are to be framed while deciding the objections depends upon the nature and tenor of the objections in the facts of the case. In the present case, in view of the nature and tenor of the objections, it was not incumbent upon the learned executing court to have had framed any Issues. A perusal of the objections demonstrates that, the same were probably filed with the intent to delay the execution.

Before the executing Court is called upon to hold any inquiry upon the objections by framing Issues and by calling upon to lead the evidence, it is incumbent upon the judgment debtor to prima facie demonstrate that, the decree is not executable and for that some legal and valid reasons the executing Court is required to frame Issues and record evidence and thereafter decide the Issue.

In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, Hon'ble Supreme Court has reiterated that, while deciding objections in an execution petition, the adjudication need not necessarily involve a detailed inquiry or collection of evidence and court can make adjudication on admitted facts or even an averment resister. Hon'ble Supreme Court has further held that, the Court can direct the parties to adduce the evidence for such determination if the court deems it necessary.

In present case, in view of the decree passed by learned Court in favour of present Respondent and in the nature of objections which were filed to the execution petition, there was no need for the learned executing Court for having had framed the Issues and learned executing Court was in a position to decide the objections on the basis of the pleadings contained in the objections. Petition dismissed.

Relevant : Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, MANU/SC/0252/1998


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