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.
