IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 365 of 2009()
1. NAZEEMA,D/O. MUHAMMED ABDULKHADER,
... Petitioner
Vs
1. K.M. NAZEER, KOOZHARAKIZHAKKETHIL VEEDU,
... Respondent
For Petitioner :SRI.K.MOHANAKANNAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.No.365 of 2009
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Dated this the 3rd day of July, 2009
O R D E R
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.
2. I heard the counsel for the petitioner.
3. Inviting my attention to some observations made by the
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
C.R.P.No.365 of 2009
2
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.
Revision is devoid of any merit, and it is dismissed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-