Parulbala Dasi Vs. Gopal Sharma

Parulbala Dasi vs Gopal Sharma

Disposition Revision allowed Court Jharkhand Decided Dec 13, 2002

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Citation: sooperkanoon.com/523513
Court: Jharkhand High Court
Judge: M.Y. Eqbal, J.
Decided On: Dec 13, 2002
Case Number: C.R. No. 322 of 2001
Subject: Civil
Disposition: Revision allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Civil
Outcome / disposition: Revision allowed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Sections 47

Parties & Advocates

Appellant / Petitioner

Parulbala Dasi

Advocate Indrajit Sinha, Adv.

Respondent

Gopal Sharma

Advocate None

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Sections 47
Reported In: [2002(2)JCR325(Jhr)]

Excerpt

.....the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ' 4. be that as it may, it appears to me that executing court has failed to consider the scope of the provisions of the section 47 of code of civil procedure. it is well settled that the executing court cannot go beyond the decree and is bound to execute the decree as it is......chaibasa by order dated 13.6.2001 appointed a commissioner for legal investigation and directed the judgment debtor to file questionnaire to be answered by commission. in the said order 13.6.2001 it was recorded that the counsel of the decree holder agreed in the judgment regarding the existence of temple in the suit premises. subsequently, the petitioner decree holder filed an application denying the fact that he ever agreed/conceded to claim of the judgment debtor and prayed for correction of the order which was rejected.3. from perusal of the judgment passed in appeal by the 4th additional judge, singhbhum west, chaibasa, it appears that the plea taken by, the defendant with regard to existence of a temple used for public has been considered and it was held, 'however, at all any idol is installed in one of the room of the suit premises does not change nature of the suit and that there is no temple used for public purposes.'4. be that as it may, it appears to me that executing court has failed to consider the scope of the provisions of the section 47 of code of civil procedure. it is well settled that the executing court cannot go beyond the decree and is bound to execute the decree as it is. as noticed above in the eviction suit the defendant took a stand that in one of the room there is temple used for public purposes which was disbelieved by the appellate court. in that view of the matter the executing court cannot again reopen the matter and decide whether atemple exist in the suit premises. the executing court has traveled beyond the decree by passing the impugned order.5. for the aforesaid reasons this revision application is allowed and the order dated 13.6.2001 passed by the executing court is set aside. the executing court is directed to execute the decree expeditiously in accordance with law.

Full Judgment

ORDER

M.Y. Eqbal, J.

1. Heard learned counsel appearing for the petitioner. No one appears on behalf of the opposite party in spite of service of notice.

2. It appears that the plaintiff petitioner filed a suit for eviction being title suit No. 33/87 in the Court of Munsif, Chaibasa for a decree of eviction of the defendant from the suit property. The suit was dismissed by the Additional Munsif. Against that appeal was preferred by the plaintiff petitioner which was eventually allowed and the suit was decreed in 1993. The petitioner then levied eviction case No. 4/84. In the said execution proceeding the opposite party filed an objection which was registered as miscellaneous case No. 2/97. In the said miscellaneous case, the opposite party filed an application for inspection of the suit property by appointing a survey commissioner on the ground inter alia that there is Kali temple in the suit premises and hence decree cannot be executed. The executing Court namely Munsif Chaibasa by order dated 13.6.2001 appointed a Commissioner for legal investigation and directed the Judgment debtor to file questionnaire to be answered by Commission. In the said order 13.6.2001 it was recorded that the counsel of the Decree Holder agreed in the Judgment regarding the existence of temple In the suit premises. Subsequently, the petitioner decree holder filed an application denying the fact that he ever agreed/conceded to claim of the judgment debtor and prayed for correction of the order which was rejected.

3. From perusal of the judgment passed in appeal by the 4th Additional Judge, Singhbhum West, Chaibasa, it appears that the plea taken by, the defendant with regard to existence of a temple used for public has been considered and it was held, 'however, at all any idol is installed in one of the room of the suit premises does not change nature of the suit and that there is no temple used for public purposes.'

4. Be that as it may, it appears to me that executing Court has failed to consider the scope of the provisions of the Section 47 of Code of Civil Procedure. It is well settled that the executing Court cannot go beyond the decree and is bound to execute the decree as it is. As noticed above in the eviction suit the defendant took a stand that in one of the room there is temple used for public purposes which was disbelieved by the appellate Court. In that view of the matter the executing Court cannot again reopen the matter and decide whether atemple exist in the suit premises. The executing Court has traveled beyond the decree by passing the impugned order.

5. For the aforesaid reasons this revision application is allowed and the order dated 13.6.2001 passed by the executing Court is set aside. The executing Court is directed to execute the decree expeditiously in accordance with law.

Same Court & Year Jharkhand · 2002 Same Parties Parulbala Dasi vs Gopal Sharma Same Subject Civil Same Judge M.Y. Eqbal, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Sections 47

Civil