CASE DETAILS v. HARIJIVAN J. JETHWA (SINCE DECEASED THR. LRS.) & Ors.

Code of Civil Procedure, 1908 – s. 47 – Execution of decree – Four years after the pronouncement of the order of execution of decree which had attained fi nality, the judgment debtors fi led an application before the executing court challenging the execution of decree – Decree holder challenged the maintainability of the application and the same was allowed – In revision, the said order was set aside – Decree holder then fi led a writ petition on the ground that the revisional court erred in holding that the application moved by the judgment debtors for setting aside the order of execution comes within the purview of the power of the executing court u/s 47; and that the said order attained fi nality and 123 124 SUPREME COURT REPORTS [2023] 14 S.C.R. res judicata would apply against the judgment debtors – Dismissed by the High Court – Correctness: Held: Executing court rightly allowed the objections of the decree holder and dismissed the application fi led by the judgement debtors – An execution proceeding works in diff erent stages and if the judgment debtors have failed to take an objection and have allowed the preliminary stage to come to an end and the matter has moved to the next stage, the judgment debtors cannot raise the objection subsequently, and revert back to an earlier stage of the proceeding – Executing court gave the said reasons in its order – Merely, because it did not specifi cally refer to the principle of res judicata would not make any diff erence – High Court though found substance in the arguments of res judicata, nevertheless refused to interfere in the petition – High Court erred by not interfering in the matter – Order passed by the appellate court and by the High Court not sustainable thus, set aside while the order of the executing court is upheld – Res judicata. [Para 8] Code of Civil Procedure, 1908 – s.

47 – Exercise of power under – Execution of a decree – Inordinate delay and slow process in the execution of a decree – Concern expressed by the Supreme Court – Direction to the executing court to complete execution within six months. [Para 6] Res judicata – Principles of - Applicability: Held: Principles of res judicata are not only applicable in respect of separate proceedings but the general principles of res judicata are also applicable at the subsequent stage of the same proceedings and thus, the same court would be precluded to go into that question which has already been decided, or deemed to have been decided by it in the earlier stage – It would be barred by the principle of res judicata, or at least by the principle of constructive res judicata. [Para 7] LIST OF CITATIONS AND OTHER REFERENCES.