Dismissed

Nazeema v. K.M.Nazeer

Kerala HC3 Jul 2009CRP/365/2009

Case brief

AI extract

What is this about?

This is a criminal revision petition (CRP) regarding an order in execution proceedings where the judgment debtor challenged a decree obtained by fraud. The bench held that the execution court is incompetent to examine infirmities in the decree or apply different laws of inheritance, as such issues belong to the trial side and are barred. The revision was dismissed.

What did the court decide?

The revision petition is dismissed.

Nazeema Vs K.M.Nazeer — Execution and Attachment | Kerala HC (2009)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT :

¶3

THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN

¶4

FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931

¶5

CRP.No. 365 of 2009()

¶6

--------------------AGAINST THE ORDER DATED 12/06/2009 IN EA 180/07 IN EP 5/07 IN OS.315/2005 of MUNSIFF COURT,VARKALA

¶7

PETITIONER/ PETITIONER / 2ND JUDGMENT DEBTOR

¶8

------------------------------------------------------------------------------

¶9

NAZEEMA,D/O. MUHAMMED ABDULKHADER, KOOZHARAKIZHAKKETHIL VEEDU, EDAVA DESOM AND VILLAGE.

¶10

BY ADV. SRI.K.MOHANAKANNAN SRI.SAABIR F. HAQ

¶11

RESPONDENT / COUNTER PETITIONER / DECREE HOLDER

¶12

------------------------------------------------------------------------------------

¶13

K.M. NAZEER, KOOZHARAKIZHAKKETHIL VEEDU, EDAVA DESOM AND VILLAGE.

¶14

THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

kkms/

¶16

S.S.SATHEESACHANDRAN, J.

¶17

----------------------------------C.R.P.No.365 of 2009

¶18

Dated this the 3^rd day of July, 2009

¶19

O R D E R

¶20

The second judgment debtor in an execution proceeding pending before the Munsiff court, Varkala, has filed this revision. An exparte decree was passed in the above suit which was one for declaration of title and recovery of possession. The respondent in the revision is the decree holder/plaintiff. When the decree was sought to be executed, the petitioner approached the execution court and moved an application as E.A.No.180/2007 contending that the decree was obtained by fraud and without going in to the question of law applicable in the case. The learned Munsiff, after hearing both sides, negatived the objections vide the order impugned. Propriety and legality of that order is challenged by the judgment debtor under this revision.

¶21

I heard the counsel for the petitioner.

¶22

Inviting my attention to some observations made by the

¶23

learned Munsiff under the impugned order, it is submitted by the learned counsel that adjudication of the questions raised by the judgment debtor relating to the objections raised that the decree was obtained by fraud and also as to the law applicable, are to be adjudicated under Section 47 CPC. I am afraid that the submissions

¶24

C.R.P.No.365 of 2009

¶25

¶26

canvassed cannot be appreciated. Execution court is incompetent to go beyond the decree to examine whether the decree which is sought to be executed suffers from any infirmity. I do not find any merit in the submission of the learned counsel, that the question raised by the judgment debtor fall within the scope of Section 47 CPC. Section 47 mandates that the enquiry shall be confined to the purpose of the Section i.e., execution, discharge and satisfaction of the decree. The questions which are raised by way of objections by the petitioner, law of inheritance, was not gone into by the court while passing the decree could not be entertained by the execution court because it was something which ought to have been taken by him on the trial side. The objection canvassed contending that law of inheritance applicable to the case was different, is definitely barred under Section 11 CPC. Then the other grounds that the decree is vitiated by fraud, that too raised without any substance, was rightly repelled by execution court.

¶27

Revision is devoid of any merit, and it is dismissed.

¶28

S.S.SATHEESACHANDRAN, JUDGE.

¶29

bkn/-

Nazeema v. K.M.Nazeer

Case brief

What is this about?

What did the court decide?

Nazeema v. K.M.Nazeer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ammad Vs Kunhami

Kammukutty Vs Aboobacker

Silpi Realtors and Contractors Vs M/S.Engineering Projects

Shine Kumar Vs James & Others

K.G.Sunil Dutt Vs Fr. K.P.Varghese and Others

Alba Vs Chandr Sekharan Vinayan