ORDER
Shiv Kumar Sharma, J.
1. Should the executing court dispose of the objection application filed under Section 47 of the Code of Civil Procedure summarily? This short question arises for consideration in this revision.
2. By the Amendment Act of 1976, reference to Section 47 has been omitted from the definition of ‘decree’ in Section 2(2) and a determination of any question within Section 47 would not now amount to a decree and would not be appealable as a decree. Since Sub-section (2) of Section 47 is deleted by the Amendment Act of 1976 with effect from 1-2-1977, the Court is no longer bound to treat an application under Section 47 raising objection to the executing of the decree, as a suit.
In the light of aforementioned legal position I proceed to examine the facts of this case which are as follows:
(i) Durga Prasad (since deceased and represented by Legal representatives) instituted a suit for declaration, possession, injunction and rendition of accounts, which was dismissed by the court of Additional District Judge No. 6 Jaipur City on 12-12-1980. Against the said decree and judgment, first appeal was preferred and this Court vide judgment and decree dated 2-7-1991 accepted the appeal in S.B. Civil Regular First
Appeal No. 60 of 1981. Operative part of the judgment reads thus:
“In this view of the matter, this appeal is allowed, the judgment and decree passed by the trial court are set aside and the suit of the plaintiff is decreed. It is held that the plaintiff appellants are entitled for their Osras for the Seva Puja of the temple, as per the earlier agreement between the ancestors of the parties dated Asoj Budi 2 Samwat 1960 first Osra being of Manohar Lal, then Santosh Kumar, Madan Gopal, Mst. Bhonri and Satrya Narain, fourth Durga Prasad, fifth Mst. Ajan, and Satish Chand and sixth Kalu Ram.
(ii) Jagdish Narain (present petitioner) preferred D. B. Civil Special Appeal No. 31/91 against the decree and judgment dated 2-7-1991 but the Special Appeal; was dismissed by the Division Bench of this Court vide order dated 3-2-1992 and decree dated 2-7-1991 was confirmed.
(iii) The legal representatives of Late Durga Prasad filed execution petition for executing the said decree. The petitioner submitted an application under Section 47, C.P.C. raising objection about the execution of the said decree.
(iv) The executing court dismissed the application of the petitioner vide order dated 8-10-1996. This order has been challenged in this revision.
4. Learned counsel for the petitioner urged
that the decree holders took the possession of the
temple along with garments of Thakurji and other
Articles on 6-8-1992. The decree only relates to
Osra and properties shown in the plaint, therefore
the execution petition with regard to other
properties is not maintainable. The executing
court committed jurisdictional error in
misinterpreting the judgment of the court. The
executing court did not record the evidence of the
parties and without making enquiry the objection
application was dismissed by the executing court
summarily. Thus the impugned order deserves to
be quashed.
5. A look at the impugned order reveals that judgment debtor Jagdish (petitioner) submitted application under Section 47, C.P.C. raising following objections:
(a) In full discharge and satisfaction of the decree dated 2-7-1991 the decree holders took possession of the temple along with garments and other articles on 6-8-1992 and nothing remains to be taken in possession,
(b) The decree is related to the properties mentioned in the plaint only but the decree holders want to take possesison of the property with the help of the police.
(c) After discharge and satisfaction of the decree, the execution petition deserves to be dismissed.
The petitioner in the said objection application did not mention the description of the properties which are not the subject matter of decree. The executing court dismissed it treating it is vague application. The executing court has also observed that on 6-8-1992 the decree was partly executed.
6. Section 47, CPC, embraces all matters connected with theexecution of an existing decree, between the parties or their representati ves covers all questions relating to the executing, discharge or satisfaction of the decree. As and when the objection are filed to the execution of a decree the executing court is not bound to frame the issues and allow the parties to lead the evidence unless it comes to the conclusion that there is some triable issue. If the executing court finds that the objections are frivolous and have been filed just to delay the execution proceedings, the same can be dismissed summarily. The executing court is not enjoined by the statue to frame issue and dispose of the same in the same manner as a suit, nevertheless the executing court is under objection to decide the dispute in a judicial manner.
7. In the present case the petitioner had challenged the decree passed in first appeal by filing special appeal before the Division Bench of this Court which was dismissed on 3-2-1992. Thereafter on 4-9-1992 the petitioner moved application under Section 47, CPC on 4-9-1992. It was the duty of the petitioner to specify in the application the properties which were not covered by the decree and for which the police help was sought by the decree-holders. Having failed to do so, the petitioner cannot derive the relief prayed for in the objection application. The executing court decided the objection in a judicial manner. As there was no triable issue before the executing court it was not necessary for it to record the evidence of the parties. The arguments canvassed by the learned counsel for the petitioner devoid of any force. I do hot find any merit in this revision. No jurisdictional error was committed by the
executing court in rejecting the objections of the petitioner.
8. In the result the revision is dismissed. No costs.