PRADEEP MEHRA versus HARIJIVAN J. JETHWA (SINCE DECEASED THR. LRS.) & ORS.

Citation: [2023] 14 S.C.R. 123 · Decided: 30-10-2023 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2023] 14 S.C.R. 123 : 2023 INSC 958
123
CASE DETAILS
PRADEEP MEHRA
v.
HARIJIVAN J. JETHWA (SINCE DECEASED THR. LRS.) & ORS.
(Civil Appeal No. 6375 of 2023)
OCTOBER 30, 2023
[SANJAY KISHAN KAUL AND SUDHANSHU DHULIA, JJ.]
HEADNOTES
Issue for consideration: Matter pertains to the delay being caused to 
the execution proceedings u/ord. XXI CPC, and the process being abused 
in the execution proceedings, to the peril of the decree holder.
Code of Civil Procedure, 1908 – s. 47 – Questions to be determined 
by the court executing decree – Scope and ambit of: 
Held: All questions between the parties can be decided by the 
executing court – These questions are limited to the execution of the 
decree – Executing court can never go behind the decree – Under s. 47 the 
executing court cannot examine the validity of the order of the court which 
had allowed the execution of the decree unless the court’s order is itself 
without jurisdiction – Appellate court, the second appellate court and the 
revisional court do not have the same powers, as the powers of the executing 
court, which are extremely limited. [Para 5]
Code of Civil Procedure, 1908 – s. 47 – Execution of decree – Four 
years after the pronouncement of the order of execution of decree which 
had attained ﬁ nality, the judgment debtors ﬁ led an application before 
the executing court challenging the execution of decree – Decree holder 
challenged the maintainability of the application and the same was 
allowed – In revision, the said order was set aside – Decree holder then 
ﬁ led a writ petition on the ground that the revisional court erred in 
holding that the application moved by the judgment debtors for setting 
aside the order of execution comes within the purview of the power of 
the executing court u/s 47; and that the said order attained ﬁ nality and 
124 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
res judicata would apply against the judgment debtors – Dismissed by 
the High Court – Correctness:
Held: Executing court rightly allowed the objections of the decree 
holder and dismissed the application ﬁ led by the judgement debtors – An 
execution proceeding works in diﬀ erent stages and if the judgment debtors 
have failed to take an objection and have allowed the preliminary stage to 
come to an end and the matter has moved to the next stage, the judgment 
debtors cannot raise the objection subsequently, and revert back to an earlier 
stage of the proceeding – Executing court gave the said reasons in its order 
– Merely, because it did not speciﬁ cally refer to the principle of res judicata 
would not make any diﬀ erence – High Court though found substance in the 
arguments of res judicata, nevertheless refused to interfere in the petition 
– High Court erred by not interfering in the matter – Order passed by the 
appellate court and by the High Court not sustainable thus, set aside while 
the order of the executing court is upheld – Res judicata. [Para 8]
Code of Civil Procedure, 1908 – s. 47 – Exercise of power under 
– Execution of a decree – Inordinate delay and slow process in the 
execution of a decree – Concern expressed by the Supreme Court 
– Direction to the executing court to complete execution within six 
months. [Para 6]
Res judicata – Principles of - Applicability: 
Held: Principles of res judicata are not only applicable in respect 
of separate proceedings but the general principles of res judicata are also 
applicable at the subsequent stage of the same proceedings and thus, the 
same court would be precluded to go into that question which has already 
been decided, or deemed to have been decided by it in the earlier stage – It 
would be barred by the principle of res judicata, or at least by the principle 
of constructive res judicata. [Para 7]
LIST OF CITATIONS AND OTHER REFERENCES.
Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC 
OnLine PC 16: (1871-72) 14 Moo IA 605; Dhurandhar Prasad Singh v. Jai 
Prakash University and Others (2001) 6 SCC 534: [2001] 3 SCR 1129; Rahul 
S. Shah v. Jinendra Kumar Gandhi and Others (2021) 6 SCC 418 – referred to. 
125
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6375 of 2023.
From the Judgment and Order dated 08.01.2021 of the High Court of 
Judicature at Bombay in WP No.8475 of 2018.
Appearances:
Sudhir Chandra, Sr. Adv., Bhagabati Prasad Padhy, Achintya Dvivedi, 
Advs. for the Appellant.
Vinay Navare, Sr. Adv., Kailash Pandey, Ranjeet Si
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