advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, March 28, 2017

rejecting the prayer of the appellant/plaintiff/decree-holder (for short, hereinafter to be referred to as “the appellant”) to eschew evidence of the respondent/defendant/judgment-debtor (for short, hereinafter to be referred to as “the respondent”) in a proceeding under Section 47 of the Code of Civil Procedure, 1908 (as amended) (hereinafter to be referred to as “CPC/Code”), as well as to dismiss such application as not maintainable.= Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: “A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.”- the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view.- Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected. 24. On a consideration of all relevant aspects in the entirety, we are thus disinclined to sustain the impugned orders and hereby set-aside the same. The appeals are allowed. The Executing Court would proceed with the execution proceedings and take it to the logical end with utmost expedition. No costs.


                                                                  REPORTABLE

                             IN THE SUPREME COURT OF INDIA

                             CIVIL APPELLATE JURISDICTION

                    CIVIL  APPEAL NOS.  4313-4314   OF 2017
             (ARISING OUT OF S.L.P (C) NOS.20745-20746 OF 2016)


M/S. BRAKEWEL AUTOMOTIVE COMPONENTS
(INDIA) PVT. LTD.                                        .…APPELLANT


                                   VERSUS

P.R. SELVAM ALAGAPPAN                         ....RESPONDENT

                              J U D G  M E  N T

AMITAVA ROY,J.

            Leave granted.
2.    The subject  matter  of  impeachment   is  the  order  dated  3.6.2016
rendered in CRP (NPD)  1499 of 2016 and CMP No. 8225 of  2016  by  the  High
Court of  Judicature  at  Madras,  thereby   rejecting  the  prayer  of  the
appellant/plaintiff/decree-holder (for short, hereinafter to be referred  to
as     “the     appellant”)     to      eschew      evidence     of      the
respondent/defendant/judgment-debtor (for short, hereinafter to be  referred
to as “the respondent”)  in a proceeding under Section 47  of  the  Code  of
Civil Procedure, 1908  (as  amended)  (hereinafter  to  be  referred  to  as
“CPC/Code”),  as well as to dismiss such application  as  not  maintainable.
By the order impugned,  the High Court has affirmed  the determination  made
to the same effect  by the Executing Court.
3.    We have heard Mr. J.S. Bakshi, learned counsel for the  appellant  and
Mr. M.P. Parthiban, learned counsel for the respondent.
4.    The genesis of the present lis  is traceable to  Civil Suit  (OS)  No.
1690 of 2010 instituted before the High Court of Delhi at New Delhi  by  the
appellant  against  the  respondent  arrayed   as  the  proprietor  of  M/s.
Kargaappa  Auto Products and M/s Paans Auto Products for  recovery  of   Rs.
20,94,953/- arising from business transactions between  the  parties.  While
the appellant  described  itself  to  be  a  company  registered  under  the
Companies Act, 1956 and engaged in the business of manufacture  and sale  of
auto components/parts,  the  respondent  was  introduced as  the  proprietor
of the afore-named proprietorship firms. According to  the  appellant,   the
respondent approached it  in the month of  November,  2002  for  a  business
deal and on the basis  of  the  bargain  entered  into,   it  supplied  auto
components  and  parts  to   the  respondent,  as  per  the   specifications
mentioned  and raised bills in connection therewith.
5.    As per the books of  account  maintained  in  the  regular  course  of
business, at the relevant time i.e. 15.10.2007, Rs. 8,01,708/-  was due  and
outstanding  against the respondent in the accounts of M/s.  Kargaappa  Auto
Products and Rs. 4,93,952/- as on 6.6.2008,   in the account of  M/s.  Paans
Auto  Products, thus totalling Rs. 12,95,660/-.   As  this  amount  was  not
paid  inspite  of  repeated  demands,  and   the   ultimate   notice   dated
28.12.2009, addressed by the appellant  to  the  respondent,  the  suit  was
filed for realisation  of  the aforementioned amount together with  interest
@ 24% p.a. for an aggregate sum of Rs. 20, 94,953/-.
6.    Though on the receipt of the summons  in  the  suit,   the  respondent
arranged for his representation, he eventually failed to submit his  written
statement and accordingly, his defence was  struck  off  vide   order  dated
20.10.2011, in view of his persistent default to that  effect.    Subsequent
thereto,  the appellant filed  the affidavit of  one  of  its  directors  in
endorsement  of  its pleaded case, who proved, amongst  others,  the  copies
of various invoices authenticating the supply of  goods  to  the  respondent
and also the statement of accounts pertaining thereto.    This  witness  too
was not cross-examined on behalf of the respondent, though  opportunity  was
granted and eventually the Trial Court, on a consideration of  materials  on
record, decreed the suit for Rs. 18,95,077/- by allowing the interest @  18%
p.a. in lieu of 24%, as claimed.
7.          As the records would reveal,  a defective appeal was filed    on
behalf of the respondent  thereafter only to be  withdrawn  in  due  course.
The appellant launched the  execution  and  the  application  in  connection
thereto was   registered as E.P. No. 11787 of 2014  to  execute  the  decree
as aforementioned.   It was thereafter that  an application for  review  was
filed by the respondent    before the  High  Court  seeking  to  recall  the
judgment and order dated 16.12.2011.  It was pleaded by the respondent  that
the suit was  not maintainable  on  account  of  non-joinder/mis-joinder  of
proper and necessary parties.  Though  he  had  admitted  that  he  was  the
proprietor of Paans Auto products, he asserted that  he was not so  of  M/s.
Kargaappa Auto Products and that instead his wife Mrs. A. Kamalla  being  so
was the proper and necessary party and that in  view  of  this  defect,  the
suit was liable to be dismissed.  He also pointed  out  that   the  name  of
this firm  is M/s. Karpaga   Auto  Products  and  not  M/s.  Kargaappa  Auto
Products, as recited in the plaint.   The respondent alleged fraud  as  well
 and contended that  the appellant was guilty  of  suppression  of  material
facts of rejection of its goods.  Further,  he also  alleged  collusion  and
connivance  between his counsel  and the  appellant  for  which  the  former
deliberately  abstained from taking necessary steps to ensure his  effective
representation in the suit,  thus resulting in the ex-parte decree.
8.    He pleaded that on  receiving  the  summons  in  the  suit,  necessary
instructions  were  conveyed  to  his  counsel  at  Delhi  to  appropriately
contest  the proceeding,  but  the latter   refrained  from   either  filing
the written statement or from  taking  necessary  steps   resulting  in  his
default for which ultimately, the  suit  was  decreed.   According  to  him,
though  he was  in touch with his counsel at Delhi through  his  counterpart
at Chennai,  he was being  given the impression that there was  no  progress
in the suit and that  he  would  be  duly  informed  about  any  substantial
development  therein  whenever  the  same  would  occur.   The    respondent
contended that it was in  February/March,  2014,  when   he  and  his  local
counsel  grew suspicious of the evasive replies  given  by  his  counsel  at
Delhi, that  the records of the suit were  consulted,  which  revealed  that
his defence had been  struck  off  on  20.10.2011  and  the  suit  had  been
decreed on 16.12.2011.   The records of the suit also divulged  that  though
an opportunity to him for cross-examination of the  witnesses  by  appellant
had been afforded, it was not availed of due to  the  sheer  dereliction  of
the professional  duties of his counsel.
9.          Noticeably, the respondent in his review application   disclosed
 that  his said counsel however did prefer an appeal  against  the  ex-parte
decree, which eventually was returned  in view  of  the  attendant  defects.
The appeal  was  however  not  re-filed  and   that  in  the  meanwhile,   a
complaint had been lodged against the counsel with the Bar Council of  Tamil
Nadu at Channai, was mentioned as well.
10.         It is worthwhile to note that  no  interim order was  passed  on
this review application, which eventually was  dismissed   on  15.4.2015  on
account of unexplained delay of three years.
11.         Meanwhile, however the  respondent filed  his  counter-affidavit
in the execution proceedings and also followed it  up  with  an  application
under Section 47 of CPC to resist the  execution of  the  decree.    Suffice
it would be to state  that   the  demurrals   in  these  pleadings   are  in
substance a replication of those narrated in  the  review  application  and,
therefore  are not being re-traversed.
12.          In  refutation,  the  appellant  did  file  a  common  counter-
affidavit asserting that  the respondent had  placed orders  for  automobile
components, which were accordingly dispatched and as  on  the  date  of  the
institution of  the  suit,  the   payments   in  connection  therewith  were
outstanding, a  suit was filed to recover the same and  eventually,  it  was
decreed on 16.12.2011 for a sum of  Rs.   18,95,077/-  along  with  pendente
lite and future interest @ 18%  p.a.   Apart  from  highlighting   that  the
respondent had  after the  receipt  of  the  summons/notices  in  the  suit,
continuously abstained himself  from  contesting  the  same  by  filing  his
written statement or taking further  initiatives  and  that,  therefore  the
decree passed was valid in law, the appellant  maintained that the suit  had
been filed against the respondent, as he represented both the firms and  had
  participated in the transactions in that capacity for  which   either  the
mistake in the name of M/s. Kargaappa Auto Products instead of  M/s  Karpaga
Auto Products or  non-impleadment of  his  wife  as  the  sole  proprietress
thereof was wholly inconsequential qua the aspect of  executability  of  the
decree.  The allegation of suppression of any material fact, as alleged  was
denied. The accusation of collusion   between the learned  counsel  for  the
respondent and the appellant was  stoutly denied as well.   It  was  pointed
out that  the fact of  filing of   appeal  preferred  by  the  same  counsel
against the  decree  belied  the   allegation  of  dereliction  of  duty  as
unfounded.   Underlining the inexplicable delay and inaction of three  years
on the part of  the  respondent  in  filing  the  review  petition,  it  was
contended that  the resistance to the executing proceedings was  only   with
the  objective  of  protracting the proceedings to his advantage  on  flimsy
and frivolous grounds.
13.         The respondent next  filed an affidavit on  the  same  lines  as
narrated in his counter and the application under Section 47 CPC and  sought
to supplement the same by producing documents  to  that  effect  by  way  of
oral and documentary  testimony of the pleaded  facts.   The   appellant  in
its rejoinder did object to this initiative on the part  of  the  respondent
as impermissible, being beyond the purview of Section 47 CPC and prayed  for
obliteration  of such evidence.   The  appellant   pleaded  that  after  the
counter-affidavit  had been  filed   by  the  respondent  in  the  execution
proceedings, arguments on  behalf  of  the  decree-holder  were  heard   and
though the proceedings were deferred  for the arguments  on  behalf  of  the
respondent, an application by him  under  Section  47  CPC  was  filed,  the
maintainability whereof was questioned  by the appellant  and  that  it  was
at that  belated  stage  that   the  respondent  sought  to  introduce   the
documentary evidence.
14.         The  Executing  Court  however  by  its  order  dated  8.2.2016,
dismissed the objection of the appellant by taking note principally of   the
fact that the respondent was not the proprietor  of  Karpaga  Auto  Products
and that  it was necessary to examine as to how  he was related to the  said
 proprietorship firm, a question  to be decided  in  the  proceedings  under
Section 47 CPC.
15.         By the  impugned  order,   the  High  Court  has  affirmed  this
determination of the Executing Court by observing  that  though  the   issue
of maintainability of the application under Section 47 CPC had  been  raised
by the appellant, it was  within  the  right   of  the  respondent  to  lead
evidence, both oral and documentary  pertaining  to  all  questions  arising
between the parties to the suit.   It was of the view that the  question  of
maintainability of the application under Section 47 CPC ought to be  decided
along with the objections raised with regard to  the  executability  of  the
decree.
16.         Learned counsel for the appellant, in the  above  backdrop,  has
argued  that the impugned order  is clearly  unsustainable  in  law  and  on
facts having regard to  the established contours of scrutiny  under  Section
47 CPC and is thus  indefensible.   Not  only  the   grounds  urged  in  the
counter-affidavit to  the  execution  petition  and  the  application  under
Section 47 CPC do have any factual foundation and  are  thus   non-existent,
these are  liable  to  be  rejected  in  limini   and  do  not  warrant  any
verification thereof.  Not only are these  objections frivolous on the  face
of record,  these have been resorted to only for protracting  the  execution
proceedings.  He urged  that  the impugned order  has the effect  of   going
behind and reopening the decree, which is impermissible in law.    According
to him,  neither the  decree suffers from any jurisdictional error nor is  a
nullity and is thus executable in law.


17.         In reply, the learned counsel for the respondent   has  insisted
that in the  teeth  of   incorrect  name  of  one  of  the  firms  and  non-
representation thereof by its rightful  proprietor,   the  decree  which  is
composite in nature, has been rendered inexecutable. He further argued  that
as the decree is an  yield  of  fraud  and  collusion  between  the  learned
counsel for the respondent and the appellant,  it is  non  est  in  law  and
thus the impugned order which only permits an inquiry in these aspects,   is
well within the purview of Section  47  CPC  and  therefor  no  interference
therewith is called for.
18.         The materials on record and the  arguments  based  thereon  have
received our due consideration.   To  recapitulate,   the  plaint  discloses
that the respondent  had represented before the  appellant to be  authorised
 to act on behalf of both the firms and in that  capacity  had  participated
in the transactions that  followed.   In  that  perspective,  even  assuming
that the name of  one of the firms was wrongly  mentioned and that in  fact,
 it is the wife of the respondent, who is the  proprietress   thereof,  with
whom there is no conflict of interest, these in our  comprehension  per  se,
would not render the decree void or  inexecutable.   Such  errors,  even  if
exist,  would not  infest the decree with any  jurisdictional  infirmity  or
reduce it to a nullity.   Noticeably, there is no  dispute  with  regard  to
the  identity  of  the  firms  involved  and  their  representation  by  the
respondent in the suit transactions. The allegation of fraud  and  collusion
between the learned  counsel  for  the  respondent   and  the  appellant  is
visibly self-serving,  omnibus, speculative  and  unauthentic    and  cannot
therefore, after so many years, ipso facto  render the  decree   invalid  on
account thereof.  Visibly, the respondent had been the center figure in  all
the transactions between the parties on  behalf   of  the  firms,  as  stand
proved in the suit and the resistance to the  execution  of  the  decree  is
neither on  behalf  of   M/s.  Kargaappa  Auto  Products/M/s.  Karpaga  Auto
Products   nor its proprietress, his wife  contending  that  the  decree  is
neither binding on the firm nor on her.   For all  practical  purposes,  the
said firm is still being represented by the  respondent  in  the  subsisting
proceedings.  The sequence  of  events  disclose  that  the  suit  had  been
instituted in the year 2010 and was decreed on  16.10.2011.  The  persistent
default on the part of the respondent  has  been  adverted  to  hereinabove.
Though a defective appeal had been filed on his behalf in the year 2012,  it
was withdrawn and  was not  re-filed  by  removing   the  defects.       The
Execution Petition though lodged in the year 2014 has not seen the fruit  of
the decree as on date. The Review Petition filed by the respondent has  also
been dismissed. Significantly,  in all  the  proceedings  initiated  by  the
respondent  to stall the execution of the decree,  the same pleas have  been
reiterated.
19.         It is no  longer  res  integra  that  an  Executing   Court  can
neither  travel behind the decree nor sit in appeal over the same  or   pass
any order  jeopardizing the rights of the parties thereunder. It is only  in
the limited  cases  where  the   decree  is  by  a  court  lacking  inherent
jurisdiction  or is a nullity that the same is rendered non est and is  thus
inexecutable. An erroneous decree cannot  be  equaled  with one which  is  a
nullity.  There are no intervening developments  as well as  to  render  the
decree  inexecutable.
20.         As it is,  Section 47 of the Code mandates  determination by  an
  executing  court,   questions  arising  between  the  parties   or   their
representatives  relating to the execution,  discharge  or  satisfaction  of
the decree and does not contemplate   any  adjudication   beyond  the  same.
A decree of court of law being sacrosanct  in nature, the execution  thereof
 ought not to  be   thwarted   on  mere  asking    and  on   untenable   and
purported  grounds  having no bearing  on the validity or the  executability
thereof.

21.   Judicial precedents to the  effect   that   the  purview  of  scrutiny
under Section 47 of the Code  qua a decree  is  limited  to  objections   to
its executability  on the ground of jurisdictional  infirmity   or  voidness
are plethoric . This Court, amongst others in Vasudev  Dhanjibhai  Modi  vs.
Rajabhai Abdul Rehman and others  1971 (1) SCR  66   in  essence  enunciated
that  only a decree  which is a  nullity   can  be  the  subject  matter  of
objection   under Section 47 of the Code  and not  one  which  is  erroneous
either in law or on facts.   The  following  extract  from   this   decision
seems apt:
“A Court executing a decree  cannot  go  behind   the  decree   between  the
parties  or their representatives; it must take the decree according to  its
tenor, and cannot entertain any objection that the decree was  incorrect  in
law or on facts.  Until it is set aside  by  an  appropriate  proceeding  in
appeal or revision, a decree even  if  it  be  erroneous  is  still  binding
between the parties.

When  a decree which is a nullity, for instance, where it is passed  without
bringing the legal representatives on the record  of a person who  was  dead
at  the  date  of  the  decree,  or  against  a  ruling  prince  without   a
certificate, is sought  to be executed an objection in that  behalf  may  be
raised in a proceeding for execution.  Again, when the decree is made  by  a
Court which has no inherent jurisdiction to make it,  objection  as  to  its
validity may be raised in an execution proceeding  if the objection  appears
on the face of the record: where the objection as  to  the  jurisdiction  of
the Court to pass the decree does not appear on the face of the  record  and
requires examination of the questions raised and decided  at  the  trial  or
which could have been but have not been raised, the  executing  Court   will
have no jurisdiction to entertain an objection as to the  validity   of  the
decree  even on the ground of absence of jurisdiction.”

22.         Though this view has echoed  time  out  of  number   in  similar
pronouncements of this Court, in Dhurandhar Prasad  Singh  vs.  Jai  Prakash
University and others,  AIR 2001 SC 2552, while dwelling  on  the  scope  of
Section 47 of  the  Code,  it  was  ruled  that  the  powers  of  the  court
thereunder  are  quite  different  and   much   narrower   than   those   in
appeal/revision or review.  It was reiterated that  the  exercise  of  power
under Section 47 of the Code is  microscopic  and  lies  in  a  very  narrow
inspection  hole  and  an  executing  court  can  allow  objection  to   the
executabilty of the decree if it is found that the same is  void  ab  initio
and  is a nullity,  apart  from  the  ground  that  it  is  not  capable  of
execution under the law, either because the same was passed in ignorance  of
such  provision  of  law  or  the  law  was  promulgated  making  a   decree
inexecutable  after  its  passing.   None  of  the  above  eventualities  as
recognised in law  for rendering a decree inexecutable, exists in  the  case
in hand. For obvious reasons, we do not wish to burden this adjudication  by
multiplying the decisions favouring the same view.
23.         Having regard  to  the  contextual  facts  and   the  objections
raised by the respondent, we are of the unhesitant opinion   that   no  case
has been made out  to entertain the  remonstrances  against  the  decree  or
the application under Section 47 CPC. Both  the  Executing   Court  and  the
High Court, in our comprehension, have not only erred   in  construing   the
scope and ambit of scrutiny under Section 47 CPC, but have  also  overlooked
the fact that the decree does not  suffer  either  from  any  jurisdictional
error or is otherwise invalid in  law.  The  objections  to  the   execution
petition as well as to the application under Section 47 CPC  filed   by  the
respondent do not either disclose any substantial defence to the  decree  or
testify the same to be  suffering   from  any  jurisdictional  infirmity  or
invalidity.  These are therefore rejected.
24.         On a consideration of all relevant aspects in the entirety,   we
are thus disinclined  to sustain  the impugned orders and  hereby  set-aside
the same.  The appeals are allowed.    The  Executing  Court  would  proceed
with the  execution proceedings  and take it to the logical end with  utmost
expedition.  No costs.



............................................J.
                                                (ARUN                MISHRA)



….........................................J.
                                  (AMITAVA ROY)
      NEW DELHI;
MARCH 21, 2017.






No comments:

Post a Comment

Note: Only a member of this blog may post a comment.