Shiba Narayan Ray v. Radhagobinda Dev Bije Nijagruha
2017-08-17
A.K.RATH
body2017
DigiLaw.ai
JUDGMENT : A.K. Rath, J. This petition is to lacinate the order dated 02.11.2016 passed by the learned Additional Civil Judge (Senior Division), Puri in C.M.A. No.68 of 2016 arising out of Execution Case No.02 of 1999, whereby and whereunder the learned executing court dismissed the application of the judgment-debtor under Section 47 CPC. 2. Since the dispute lies in a very narrow compass, suffice it to say that the opposite party no.1 along with predecessor-in-interest of the opposite party nos.2 to 5 instituted O.S. No. 15/111/1976/76 in the court of the learned Sub-Judge, Puri for recovery of possession of the suit property impleading the father of the petitioner and another as defendants. The suit was dismissed. The plaintiffs filed T.A. No.43/1978, which was subsequently transferred to the court of the learned 2nd Additional District Judge, Puri and renumbered as T.A. No.6/43 of 1982/78. The appeal was allowed. The defendant no.2 filed Second Appeal No.180 of 1983 before this Court, which was eventually dismissed on 16.07.1993. While matter stood thus, the decree-holders levied Execution Case No.02 of 1999. In the said case, the petitioner filed an application under Section 47 CPC. It is stated that after disposal of the Second Appeal, the decree-holders executed an agreement for sale in favour of the judgment-debtor for a consideration of Rs.13,75,000/-. They have received an amount of Rs.10,75,000/-. It was, inter alia, agreed by the parties that the decree-holders would obtain a declaration from the Additional Assistant Commissioner for Endowment to sell the property. Thereafter the decree-holders filed O.A. No.25 of 2011 before the Additional Assistant Commissioner for Endowment for according permission. The same is sub judice. The judgment-debtor instituted C.S. No. 625 of 2016 for specific performance of contract impleading the decree-holders as defendants. The decree-holders filed an objection stating therein that the application under Section 47 CPC is not maintainable. The learned executing court can not go behind the decree. By order dated 02.11.2016, the learned executing court dismissed the application. 3. Mr. V. Mohapatra, learned counsel for the petitioner submits that during pendency of the execution case, the decree-holders intended to sell the property to the judgment-debtor for a consideration of Rs.13,75,000/-. They have received an amount of Rs.10,75,000/-. They executed an agreement for sale. Thereafter the decree-holders filed O.A. No.25 of 2011 before the Additional Assistant Commissioner for Endowment for according permission to sell the land.
They have received an amount of Rs.10,75,000/-. They executed an agreement for sale. Thereafter the decree-holders filed O.A. No.25 of 2011 before the Additional Assistant Commissioner for Endowment for according permission to sell the land. The judgment-debtor/petitioner as plaintiff instituted C.S. No.625 of 2016 in the court of learned Civil Judge (Senior Division), Puri for specific performance of contract. The same is sub judice. In view of the same, the learned trial court is not justified in rejecting the application under Section 47 CPC. 4. Per contra, Mr. L.N. Rayatsingh, learned counsel for the opposite party nos.2 to 5 contended that the learned executing court can not go behind the decree. The learned executing court has rightly rejected the application. 5. The scope of Section 47 CPC is well-known. In M/s Brakewel Automotive Components (India) Pvt. Ltd. v. P.R. Selvam Alagappan, AIR 2017 SC 1577 , the apex Court held thus:- “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.
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 : AIR 1970 SC 1475 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.” 6. As held by the apex Court 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.
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. It was further held 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. 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. The order passed by the learned executing court cannot said to be perfunctory or illegal warranting interference of this Court under Article 227 of the Constitution of India. 7. In the wake of aforesaid, the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.