2016 (6) TMI 1241 - HC - Indian Laws

Application under Section 47 of the Code of Civil Procedure - eschew the evidence - whether letting in oral evidence by the respondent cannot be permitted? - Held that - The issue with regard to the maintainability of the Application can be decided in the Section 47 Application and that cannot be put against the respondent/Judgment Debtor for letting in oral evidence and marking the documents in Section 47 Application. In order to establish his case, the respondent/Judgment Debtor has got every right to let in oral evidence and mark the documents. The respondent cannot be prevented from letting in oral evidence and marking documents in Section 47 Application. Under Section 47 of the Code of Civil Procedure all questions arising between the parties to the suit in which the decree was passed shall be determined by the Court executing the decree and not by a separate suit. Execution Court has rightly rejected the Application to eschew the evidence of P.W.1 and to dismiss the Section 47 Application as not maintainable. The Execution Court can decide the issue with regard to the maintainability of the Section 47 Application while disposing of the Section 47 Application. It is needless to say that the petitioner/Decree Holder shall have the right of cross examining the respondent/Judgment Debtor and it is also open to the petitioner to let in oral and documentary evidences in the Section 47 Application. In these circumstances, we do not find any error or irregularity in the order passed by the Execution Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed.

Summary

Issues:
Challenge to order in E.A.No.787 of 2015 in E.P.No.1787 of 2014 in C.S.(O.S.).No.1690 of 2010.

Analysis:
The plaintiff initiated a suit in O.S.No.1690 of 2010 in the High Court of Delhi, seeking money recovery, which was decreed on 16.12.2011 and later transferred to the City Civil Court in Chennai. Subsequently, an Execution Petition (E.P.No.1787 of 2014) was filed by the plaintiff in Chennai. The respondent/defendant then filed an Application under Section 47 of the Civil Procedure Code in E.A.No.6319 of 2014. The plaintiff objected to the maintainability of this application, leading to further legal actions.

The petitioner argued that the respondent's Section 47 Application was not maintainable, and thus, oral evidence should not be allowed. However, the court held that the respondent had the right to present oral evidence and mark documents in the Section 47 Application to support their case. The court emphasized that under Section 47 of the Civil Procedure Code, all issues between the parties to the suit must be determined by the court executing the decree, not through a separate suit.

The court concluded that the Execution Court rightfully rejected the petitioner's Application to eschew the evidence and dismiss the Section 47 Application. It was deemed appropriate for the Execution Court to decide on the maintainability of the Section 47 Application while handling the original application. The petitioner was granted the opportunity to cross-examine the respondent and present oral and documentary evidence during the proceedings.

Ultimately, the court found no errors in the Execution Court's decision and dismissed the Civil Revision Petition. The Execution Court was instructed to address the issue of maintainability within two months while disposing of the original application. No costs were awarded, and the connected miscellaneous petition was closed.