AIR 2004 CALCUTTA 267 ::(2004) 3 ArbiLR 492 ::(2005) 2 Cal HN 420 ::(2004) 2 CalLT 604 ::(2004) 4 CurCC 459

Calcutta High Court

Hon'ble Judge(s): Jayanta Kumar Biswas , J

(A) Civil P.C. (5 of 1908) , S.47— Powers of executing Court - Raising of question as to executability of null decree - Is permissible under S. 47 - Further on finding decree is nullity, it is duty of Court to hold that decree is not executable. In an application under S. 47 the question that a decree is not executable being a nullity can be raised, and the executing Court can decide the question. In such cases the question of acquiescence will not be relevant. A decree which is a nullity in the eye of law is no decree, and hence even by consent of the parties such a decree cannot be executed by the Court. In the instant case the judgment-debtor did not raise the question before, but for this reason it cannot be denied the remedy available to it under S. 47 of the C.P.C. If the Court finds that the decree is a nullity, as contended by the judgment-debtor the Court cannot proceed to execute it, and it is the duty of the court to hold that the decree is not executable.(Para 8 9) (B) Evidence Act (1 of 1872) , S.115— Waiver and acquiescence - Execution of decree - Question whether decree is nullity - Not raised by judgment-debtor at earlier stage - Judgment-debtor cannot be denied remedy available to him under S. 47 of Civil P.C. - Principles of waiver, acquiescenc....