Decided on May 07,1986

HAJRA Appellant


- (1.) This revision is directed against the order of execution and raises some important questions of law. In order to appreciate the questions involved, it is necessary to give brief facts.
(2.) Petitioner herein is the judgment-debtor and the respondent 1 is the decree-holder. A decree for mandatory injunction directing the petitioner and respondent No.2 to vacate from the suit property and a decree for permanent injunction restraining the defendants from causing any interference in the possession of the plaintiff with respect to the suit property was passed by the trial courts. An appeal was filed against the said judgment and decree before the Sub Judge, Chief Judicial Magistrate, Srinagar. The appeal also came to be dismissed on 15-12-1984. The judgment and decree of the trial court assumed finality. An execution was taken against the decree by the respondent 1 herein. It was prayed in the execution application that the judgment-debtors refuse to obey the decree, therefore the decree may be executed by sending the judgment-debtor to the civil prison and by giving possession to the decree - holder. On this execution application coming before the trial court, the trial court issued a notice to the judgment-debtors and, among the judgment-debtors, the petitioner alone contested the execution matter before the trial court. She filed an application before the trial court on 14-9-1985 raising three objections to the execution of the decree; namely, a. That the decree under execution has been obtained fraudulently on false and frivolous grounds; b. That a suit for cancellation of the decree under execution is already filed and a temporary injunction is issued against the decree-holder and he is directed to maintain status quo; c. That the decree was not executable.
(3.) The trial court, which was the executing court also overruled these objections and held that the decree was executable and ordered execution. On appeal the Ist Additional District Judge. Srinagar held that in view of the amendment in the Civil Procedure Code, any order passed by the executing court under S.47 is not appealable. Therefore the appeal was held not maintainable. Hence this revision.;

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