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Report No. 27

Section 42

1. Certain recommendations were made in the Fourteenth Report1-2, for amending section 42 so as to amplify the powers of the court to which execution has been transferred.

2. The amendments proposed in the Fourteenth Report, have been carried out in part and with certain modifications, as follows:-

(a) The transferee court will, under the proposed amendment, have power to

(i) transfer a decree again for execution;

(ii) add legal representatives3-4; and

(iii) attach a decree5.

(b) The Fourteenth Report had recommended, that the transferee court should have several other powers also, namely, power under Order XXI, rule 16 (execution at the instance of assignees), power under Order XXI, rule 50(2) (power to grant leave to execute decree against partner not served, etc.) and power under section 152 (correction of mistakes).

This recommendation has not been carried out.

So far as powers under Order XXI, rule 16 and Order XXI, rule 50(2) are concerned, it is considered that such powers need not be given to the transferee court. Whether the decree has been assigned or not, has nothing to do with execution and the power under Order XXI, rule 16, can therefore be left to the court which passed the decree. Determination of questions under Order XXI, rule 50, may involve a consideration of matters decided in the main suit. It will be better if such proceedings are held only by the court which passed the decree. It is also considered, that to put the matter beyond doubt, an express provision should be inserted excluding such matters from the purview of the transferee court. Necessary change is proposed.6-7

(c) The power to correct mistakes, etc., under section 152 must, it is considered, remain with the Court which passed the decree. An express provision excluding that power is not, however, necessary.

3. A provision, it is considered, should be added to the effect that all steps taken by the transferee court under the specified powers should be intimated to the transferring Court. Necessary change is proposed.

4. U.P. Amendment.-The U.P. Legislature has made an amendment where by the words "as the Court which passed the decree" have been substituted for the words " as if had been passed by itself". It is considered unnecessary to adopt this amendment8, as the amendments already proposed to section 42 confer upon the transferee court some of the powers of the original court, and that will suffice.

1. 14th Report, Vol. 1.

2. See also Civil Justice Committee (1924-25) Report, pp. 386-387, para. 15.

3. As to execution against legal representative, see fang Bahadur v. Bank of Upper India, 55 IA 227: AIR 1928 PC 162.

4. For the conflict on this point, see Punjab Co-operative Bank v. L. Bikram Lal, AIR 1959 Punj 71; Prasadi v. Ghulam, AIR 1951 Pat 618.

5. Prithi Raj v. Bal Mukand, AIR 1940 Pat 557 recognises power to attach decree.

6. As to the existing position regarding powers of the transferee court to grant leave under Order 21, rule 50; see Sanwal Das v. Babubhai, AIR 1963 Punj 395.

7. See also notes to Order 21, rule 50.

8. See the amendments proposed to section 42.

Section 47

This carries out the recommendation in the Fourteenth Report1. The object is to clarify the application of the doctrine of res judicata to execution proceedings. The matter has come up again and again before the courts. Some recent decisions2 review the case-law on the subject.

1. 14th Report, Vol. I.

2. Amar Singh v. Gulab Chand, AIR 1960 Raj 280; Palaniappa v. Mariappa, AIR 1960 Mad 343; Mohan Lal Goenka v. Benoy, 1953 SCR 377: AIR 1953 SC 65; Gandhir Laxmichand v. Tulsidas, AIR 1963 Guj I (P.N. Bhagwati J.).

Section 47 and auction-purchasers

A question that has raised some controversy is, whether an application for possession by an auction-purchaser falls under section 47. The amendment of 1956 has touched the question, to some extent, and a discussion therefore of the position before and after the Amendment would be convenient.



Code of Civil Procedure, 1908 Back




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