HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

…

CR no.06/2021

Reserved on: 16.04.2021

Pronounced on: 03.07.2021

United News India

…….Petitioner(s)

Through: Mr G.R.Tantray, Advocate

Versus

Aijaz Rasool

……Respondent(s)

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

1. Challenge is thrown to Order dated 20^th March 2021, passed by the

Municipal Magistrate, 1^st Civil Subordinate Judge (for brevity

“Executing Court”) on the grounds taken in Civil Revision Petition on

hand.

2. Heard and considered.

3. A suit for ejectment, as is coming forth from perusal of the file, was

filed by respondent, which was decreed vide judgement dated 30^th

March 2018 for ejectment of defendant/petitioner from rented premises

and delivery of possession to plaintiff/respondent, with a further decree

of recovery of rent in the amount of Rs.20,000/-

4. Execution petition was filed by respondent before the Executing Court,

to which objections were filed by petitioner.

5. The grounds of challenge in instant civil revision petition are that the

suit in which decree was passed has been valued at Rs.80,000/- by

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plaintiff/respondent and defendant/petitioner had raised objection to the

improper valuation of suit by respondent, but Trial Court did not strike

any Issue with regard to improper valuation of plaint by respondent;

that under Section 6 of the Code of Civil Procedure, no court has

jurisdiction over the suits, the amount or value of subject-matter of

which exceeds pecuniary limits of its ordinary jurisdiction and that

section 16 CPC provides that subject to pecuniary or other limitation

prescribed by any law, suit shall be instituted in the court within the

local limits of whose jurisdiction property is situate; that Section 21(2)

CPC provides that no objection as to competence of a court with

reference to pecuniary limits of jurisdiction shall be allowed by any

appellate or revisional court unless such objection was taken in the

court of first instance at the earliest possible opportunity and in all cases

where issues are settled at or before such settlement and unless there

has been a consequent failure of justice; that under Section 47 CPC all

questions relating to execution, discharge or satisfaction thereof are to

be determined by the Court of executing the decree and therefore,

question whether the decree has been passed by the court having

jurisdiction over the suit instituted by plaintiff/decree holder against

defendant/judgement debtor is to be decided by this Court. It is

contended that executing court has failed to exercise its jurisdiction

vested in it under Section 47 CPC inasmuch as expression execution

inheres in its executability and inexecutability of a decree to be

examined / adjudged on the anvil of jurisdiction foundations of a court

and the jurisdictional qualifications of a court prescribed under Section

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CR no.06/2021

6 and 16 CPC have all together been brushed aside by the executing

court. It is also averred that executing court has misinterpreted the ratio

laid down in the judgements cited by executing court while dealing with

objections taken by petitioner/judgement debtor to the executability of

the decree passed by Trial Court on 30^th March 2018 in utter disregard

to the plea taken by petitioner/defendant in written statement submitted

before the Trial Court.

6. Taking into account averments made in the instant Revision Petition

and submissions made by learned counsel for petitioner, it would be apt

to go through objections filed by petitioner in opposition to execution

petition of respondent before the Executing Officer. It has been insisted

in the objections to the execution petition that judgement and decree

passed in ex parte against judgment debtor/petitioner was under

challenge before the appellate court – 3^rd Additional District Judge,

Srinagar and that decree was inexecutable as