The Executing Court's jurisdiction under Section 47 of the Code of Civil Procedure is limited to executability issues, and merit-based challenges to decrees are not permissible.

JUDGMENT :

Biswaroop Chowdhury, J.

This application is directed against order dated 31/08/2024 passed by Learned Civil Judge (Senior Division) Bongaon North 24 Parganas in Misc Case 08/2023. Learned Judge by the said order was pleased to dismiss the application under Section 47 of the Code of Civil Procedure on contest. The petitioner being aggrieved by the said order has come up with this application under Article 227 of the Constitution of India.

2. The case of the petitioner who is a judgment debtor in Misc Case No-08 of 2023 arising out of Title Execution No. 4 of 2022 is on the ground that the decree holders filed the Title Execution No. 04/2022 whereafter vide order dated 01.02.2023 direction was given to the decree holder for issuance of notice upon the judgment debtors and 21-02-2023 was fixed for steps. On the said date decree-holder did not take any steps for issuance of notice, rather, they filed an application for appointment of a survey passed Commissioner. The date of hearing the application was fixed on 09.03.2023. An adjournment was also sought for on 09.03.2023, the next date fixed was 04.04.2023. On 04- 04-2023 two applications praying for amendment of execution application and the application for the appointment of a survey passed Commissioner were made by the decree holder and for the purpose of diverting the attention from the subject of issuance of notice upon the judgment debtors on 04.09.2023 the next date fixed was 21.02.2023 which was subsequently over written and changed to 04.05.2023 and that despite the fact that in the order dated 04.04.2023 the next date was fixed on 21-02-2023. Yet on 04.05.2023 the said two amendment applications of the decree holder were heard and allowed. It was further alleged that 07-06-2023 was fixed for filing of the amended applications and on the same date the same were filed that subsequently, on 20-06-2023, the application for the appointment of a survey passed Commissioner was fixed for hearing inviting written objection, if any in the meantime and on the said date the hearing could not be conducted due to resolution of the Local bar Association and 17.07.2023 was fixed for hearing of the said application.

3. The Judgment Debtor also contended in the application about the merits of the case.

4. The decree holder filed objection to the said petition, denying the contentions of the Judgment Debtor/Petitioners.

5. Upon the petition and the written objection the Learned Executing Court framed the following ISSUES.

1. Whether the present miscellaneous case is not maintainable in its present form and in Law?

2. Whether the Title Execution Case No. 04/2022 is not maintainable in its present form and in law?

3. Whether the applicant judgment debtors are entitled to the relief claimed in the present case?

6. Upon hearing the Learned Advocate for the judgment debtor/petitioner and Learned Advocate for the decree holder/opposite party Learned Court was pleased to hold ISSUE No-1 in the affirmative and against the Judgment Debtor ISSUE No-2 in the negative and in favour of the Decree holder and ISSUE No-3 in the negative and against the petitioner/judgment debtor. Thus the application filed by the Judgment Debtor being miscellaneous case no. 08 of 2023 under Section 47 of the Code of Civil Procedure failed and the same