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v.lakshminarayanan (business)     13 December 2008

civil litigation - doubts

dear members

this is my first posting in this forum, good day to all.

i have the following doubts with regard to civil law:

1. is there any recent supreme court contradicting or overruling the order in Kunhayammed vs state of Kerala reported in 2000 (6) SCC 359?

2. is it permissible for a trial court to rely on the proof affidavits filed by the witnesses after rejecting the documentary evidence referred in such affidavits?

3. will the pendency of execution proceedings mean that the original suit proceeding is pending? (in case where the original proceedings are over upto supreme court and the execution petition is allowed in the executing court and is pending in appeal)

4. is there any supreme court authority for points 2 and 3?



 1 Replies

Jayesh Bheda (Advocate)     16 December 2008

1. That judgment has been refered various times by SC thereafter.

2. This point is not clear. What do you mean by 'proof affidavit'. Do you mean that affidavit of witness given in examination-in-chief as per the CPC 2002 amendment? If so , court does not have to rely on such affidavit. It is the statement of examination-in-chief of a witness, which previouls used to be in oral. So any document is admissible or not is different from the affidavit.

3.Ordinarily, yes, if execution is pending that means the original trail has been finally adjuricated and decress has been passed. Only exception is if such decree is preliminary decrees, than than the proceeding may be peidng for final decree.

4. I do not believe that any SC authority is required to clear those points.








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