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2013 DIGILAW 1704 (PNJ)

Nagasamy v. E. P. K. Mani

2013-12-17

P.R.SHIVAKUMAR

body2013
P.R. Shivakumar, J. 1. The Decree-holder, who obtained a Decree for Specific Performance against the Respondents 1 & 2 herein in O.S. No. 368 of 1998 on the file of Sub-Court, Sankari, is the Petitioner in the present Revision Petition. The said Suit was filed by the Revision Petitioner against the Respondents herein on the basis of a registered Sale Agreement dated 17.9.1998 executed by the Second Respondent herein, who figured as the First Defendant in the above said Suit. The other admitted fact is that the First Respondent herein (Second Defendant in the Suit) purchased the Suit property subsequent to the above said Sale Agreement dated 17.9.1998 and before the filing of the above said Suit for Specific Performance. The following dates will make the picture clear: It will be obvious from the above said facts that the First Respondent chose to get a Sale Deed in respect of the suit property subsequent to the execution of the Sale Agreement dated 17.9.1998 and prior to the filing of the Suit for Specific Performance. That was the reason why the Revision Petitioner (Decree-holder) chose to file the Suit not only against the Second Respondent (First Defendant), but also against the First Respondent herein (Second Defendant) on the premise that the First Respondent, being a subsequent purchaser, was bound by the commitment made in the Suit Sale Agreement dated 17.9.1998 by the Second Respondent. The First Respondent herein (Second Defendant) who did have the opportunity of claiming that the Plaintiff was not entitled to the relief of specific performance if at all there had been novation of the Agreement by a subsequent understanding that the Agreement would be given a go by or that being a bona fide purchaser for value without notice of the prior Agreement, his right was to be protected. Unfortunately the First Respondent/Second Defendant did not enter appearance to resist the claim made by the Revision Petitioner in the above said Suit and paved the way for the passing of an ex parte Decree dated 29.6.2009 directing execution of the Sale Deed in accordance with the Suit Sale Agreement dated 17.9.1998. The Decree also directed the First Respondent herein/Second Defendant to join with the Second Respondent/First Defendant in executing a Sale Deed in accordance with the Suit Sale Agreement as a subsequent purchaser bound by the agreement entered into by his vendor. The Decree also directed the First Respondent herein/Second Defendant to join with the Second Respondent/First Defendant in executing a Sale Deed in accordance with the Suit Sale Agreement as a subsequent purchaser bound by the agreement entered into by his vendor. The Second Respondent herein/First Defendant also remained ex parte and that was the reason why ex parte trial was conducted and an ex parte Decree came to be passed. 2. After the passing of the Decree, the Revision Petitioner chose to file R.E.P. No. 92 of 2004 for the execution of the Decree. The said R.E.P came to be filed on 6.9.2004. The First Respondent could have atleast preferred an Application before the Trial Court to set aside the ex parte Decree immediately after receiving Notice in the Execution Petition, of course, along with an Application to condone the delay in filing the same. The First Respondent, instead of doing it, chose to file an Application on the execution side as R.E.A. No. 302 of 2005 in R.E.P. No. 92 of 2004 on 13.10.2005 under Section 47 of the Code of Civil Procedure, contending that the Decree was inexecutable because it was obtained in suppression of a pre-suit arrangement among the First Respondent, Second Respondent and all the creditors of the Second Respondent including the Revision Petitioner, pursuant to which alone the First Respondent got a Sale Deed in his favour on 29.10.1998. 3. Of course, the Executing Court passed an Order on 22.1.2007 rejecting the Application filed on the execution side under Section 47, C.P.C. opining that the said Application was not maintainable. As against the said Order, the First Respondent approached this Court by filing a Revision in C.R.P (NPD) No. 2447 of 2007. A learned Judge of this Court, after hearing, held that an Application filed under Section 47, C.P.C. could not be dismissed in limine without affording an opportunity to the parties to raise their pleas and leading evidence. Consequently, the learned Judge of the Executing Court was directed to take the R.E.A again on file, give opportunity to the parties to lead evidence and then decide the same as if it were a Suit. 4. The learned Judge of the Executing Court revived the R.E.A. pursuant to the Order of this Court and conducted an enquiry in which witnesses were examined on the side of the Applicant, namely the First Respondent herein. 4. The learned Judge of the Executing Court revived the R.E.A. pursuant to the Order of this Court and conducted an enquiry in which witnesses were examined on the side of the Applicant, namely the First Respondent herein. However, no witness was examined on the side of the Revision Petitioner (the Decree-holder). Thereafter, the learned Judge of the Executing Court, upon considering the evidence adduced on the side of the First Respondent herein and also taking note of the fact that no oral evidence was led on the side of the Revision Petitioner herein, accepted the contention of the First Respondent that there was an understanding prior to the filing of the Suit by which the Revision Petitioner had agreed to not press his rights under the Suit Agreement for Sale and held that the Decree obtained in O.S. No. 368 of 1998 was not executable against the First Respondent herein. Accordingly, R.E.A. No. 302 of 2005 was allowed and the Execution proceeding was terminated. The said Order of the learned Judge of the Executing Court dated 2.6.2010 is challenged by the Revision Petitioner in the present Civil Revision Petition. 5. Learned Counsel for the Revision Petitioner vehemently argued that though a learned Judge of this Court on the earlier round of litigation, would have held that the Application filed under Section 47, C.P.C. should not have been dismissed without giving an opportunity to the parties to lead evidence, the learned Judge by the said Order did not decide the question of maintainability of the Execution Application filed under Section 47 and that all questions, including the question of maintainability, were left open to be decided, of course, after affording an opportunity to the parties to lead evidence. It is the further contention of the learned Counsel for the Revision Petitioner that a Decree-holder, who opposed the Application under Section 47, C.P.C., need not lead evidence if he is of the view that the Application is liable to be dismissed on the question of maintainability and that the failure to examine any witness on the side of the Decree-holder could not be projected as a hurdle for his seeking the dismissal of the Application as not maintainable. In support of his contention, learned Counsel for the Revision Petitioner has cited a number of Judgments of the High Courts and the Supreme Court and has argued that the Executing Court cannot go beyond the scope of the Decree and it cannot consider the merits of the Decree. It is his further contention that the very objection raised by the First Respondent in the Revision Petition for the execution of the Decree is based on a plea which ought to have been taken in the Suit itself and that hence, the Application filed under Section 47, C.P.C. should have been dismissed as not maintainable. 6. Per contra, Mr. N. Manokaran, learned Counsel for the First Respondent would submit that Section 47, C.P.C. not only empowers the Executing Court but also enjoins a duty on the Executing Court to decide all questions between the parties to the Suit in which the Decree was passed or their Legal Representatives and that the question raised by the First Respondent in this case is such a question, which according to Section 47, should be decided by the Executing Court and not by a separate Suit. 7. However, the learned Counsel for the First Respondent is not in a position to successfully counter the argument advanced by the learned Counsel for the Revision Petitioner which was supported by the authoritative pronouncements of the Supreme Court regarding the scope of an Application under Section47, C.P.C. The learned Counsel for the Revision Petitioner has rightly contended that in order to bring a question within the power of the Executing Court to decide under Section 47, the question should be between the parties to the Suit or their representatives and also it should be one relating to the execution, discharge or satisfaction of the Decree. For better appreciation Section 47(1) is reproduced: "47. Questions to be determined by the Court executing Decree.--(1) All questions arising between the parties to the Suit in which the Decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the Decree, shall be determined by the Court executing the Decree and not by a separate Suit." 8. As rightly contended by the Revision Petitioner, The first part and the second part joined with the conjunction "and" cannot be read disjunctly. As rightly contended by the Revision Petitioner, The first part and the second part joined with the conjunction "and" cannot be read disjunctly. Otherwise, a party to the proceedings, after omitting to take a plea in the Written Statement, can project any question as a question arising between the parties in the Suit in which the Decree is passed. Therefore, as rightly contended by the learned Counsel for the Revision Petitioner, such question arising between the parties to the Suit to be decided by the Executing Court should be qualified by a rider that the same should be relating to the execution, discharge or satisfaction of the Decree. Such an interpretation alone shall be the meaningful interpretation. Otherwise, the same will lead to a chaotic position whereby a litigant who omits to put forth a plea in the Suit can go on filing Applications under Section 47 raising the pleas, which he ought to have raised in the Suit. 9. In this regard it shall be useful to refer to the following Judgments: "(1) Judgment of a learned Single Judge of this Court in Padmavathi v. Kaveriammal, : 2009 (1) CTC 58 ; (2) The Judgment of the Hon'ble Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University and others, : 2001 (4) R.C.R. (Civil) 280 : 2001 (6) SCC 534 ; (3) The Judgment of the Hon'ble Supreme Court TCI Finance Ltd. v. Calcutta Medical Centre Ltd. & Anr., : 2005(2) R.C.R. (Rent) 424 : 2005(4) R.C.R. (Civil) 347: AIR 2005 SC 3654 ." In the first of the cases cited above, after going through various Judgments in this regard, a learned Single Judge of this Court has held that it is well settled that the Executing Court cannot go beyond the Decree unless the Court which passed the Decree suffered from lack of jurisdiction which will make the Decree a nullity. In the second of the Judgments cited above, the Hon'ble Supreme Court has made the following observation: "Under Section 47 of the Code, all questions arising between the parties to the Suit in which the Decree was passed or their representatives relating to the execution, discharge or satisfaction of Decree have got to be determined by the Court executing the Decree and not by a separate Suit. The powers of Court under Section 47 are quite different and much narrower than its powers of Appeal, Revision or Review." It must be noted that the Hon'ble Supreme Court, while applying the provision under Section 47, has carefully omitted the conjunction. In order to avoid confusion and rule out a possible argument that all questions between the parties form one set of questions and all questions relating to the execution, discharge or satisfaction of the Decree form another set of questions and their Lordships of the Supreme Court have made it clear, by removing the conjunction, that both the conditions should be present to confer jurisdiction on the Executing Court to decide the question. In the very same Judgment the Hon'ble Supreme Court has also made the following observation: "The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the Decree if it is found that the same is void ab initio and nullity, apart from the ground that Decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a Decree in-executable after its passing". The said Judgment makes it clear that in addition to the absence of jurisdiction if the Decree is passed in ignorance of the then existing law, such a Decree can be attacked as a nullity and void ab initio and that in case a Decree is made inexecutable by a post Decree legislation, then also such a Decree can be challenged as inexecutable because of the subsequent legislation. Similar is the view expressed by the Hon'ble Supreme Court in the third of the Judgments cited above. 10. If the said principle enunciated by the Apex Court regarding the scope of the power conferred on the Executing Court under Section 47 of the Code of Civil Procedure is applied to the case on hand, one has to come to a necessary conclusion that what the Executing Court has done here is beyond the scope of the said provision. Admittedly, the First Respondent herein who filed the Application under Section 47 was a party Defendant in the Suit. Admittedly, the First Respondent herein who filed the Application under Section 47 was a party Defendant in the Suit. He did not contest the Suit and allowed the Suit to be decreed ex parte. Suppose the First Respondent has taken a plea that subsequent to the passing of the Decree there was some understanding and adjustments between the parties to the Suit, the same can very well fit into the scope of Section 47. But, that is not the case of the First Respondent herein. According to him, even prior to the filing of the Suit there was an understanding and hence by virtue of such an understanding, the Decree obtained in a Suit filed subsequent to such understanding is not executable. Such a question cannot be one which is contemplated under Section 47 of the Code of Civil Procedure. The First Respondent could have very well appeared before the Trial Court and put forth a plea that the Agreement itself had become unenforceable because of a composition among the creditors of the Second Respondent, Second Respondent and the First Respondent. Having failed to take such a stand and defend the Suit, the First Respondent cannot be allowed to raise it as a plea especially when it is not the case of the First Respondent that the Court which passed the Decree did not possess the jurisdiction to pass such a Decree. For all the reasons stated above, this Court comes to the conclusion that the learned Judge of the Executing Court, without properly considering the scope of the plea made by the First Respondent and without properly applying the principle of law enunciated by the High Courts and the Supreme Court in this regard, has come to an erroneous conclusion that the Decree passed in O.S. No. 368 of 1998 was inexecutable because of the alleged understanding reached prior to the filing of the Suit. This Court will hold such a finding of the Executing Court to be defective and infirm warranting interference by this Court. The learned Judge of the Executing Court ought to have dismissed the application holding that it was not maintainable as the same was beyond the scope of the power of the Executing Court contemplated under Section 47 of the Civil Procedure Code. In the result, the Revision succeeds and accordingly, the Revision Petition is allowed. The learned Judge of the Executing Court ought to have dismissed the application holding that it was not maintainable as the same was beyond the scope of the power of the Executing Court contemplated under Section 47 of the Civil Procedure Code. In the result, the Revision succeeds and accordingly, the Revision Petition is allowed. The Order of the Executing Court dated 2.6.2010 made in R.E.A. No. 302 of 2005 is set aside and R.E.A. shall stand dismissed. It goes without saying that the consequential Order passed in R.E.P. No. 92 of 2004 also shall vanish. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.