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2018 DIGILAW 891 (MP)

Motilal Gupta v. Gaya Prasad (since deceased)

2018-10-22

VIJAY KUMAR SHUKLA

body2018
ORDER : This is a petition filed under Article 227 of the Constitution of India challenging the legality and validity of the order dated 5-10-2018 passed by learned II Additional District Judge, Satna whereby an application filed by the petitioner/judgment-debtor for amendment has been rejected. 2. The factual expose, adumbrated in a nutshell, is that the respondent No.1 filed a civil suit for declaration of title over Khasra No.599/675/1(a), area 0.50 hectare situated at Sindhi Camp, Satna and for recovery of the possession. The said suit was decreed by the judgment and decree dated 30-7-2011. 3. In the execution proceedings, the judgment-debtor filed an application for amendment stating that in the description of the land in para 9 of his application at 25th line be allowed to add 1 in the description Kh.No.599/675/1(a). 4. Counsel for the petitioner submitted that the trial Court has erred while rejecting his application which is contrary to the provisions of Order 21 Rule 97 read with Section 47 of the Civil Procedure Code [for short ‘the CPC’]. It is useful to refer the provisions of Order 21 Rule 97 of the CPC which are reproduced hereunder: “97. Resistance or obstruction to possession of immovable property.-(1) Where the holder or a decree for the possession of immovable property or the purchaser or any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.” 5. Upon perusal of the aforesaid provisions it is evident that Order 21 Rule 97 of the CPC enables the decree-holder or purchaser to file an application, in case there is any obstruction in obtaining the possession in execution of a decree. The said provision does not permit the judgment-debtor to file any application. 6. The trial Court has taken note of the fact that the petitioner cannot be permitted to seek amendment in respect of the description of the land which would be beyond the decree itself. The Court further took note of the fact that possession warrant has already been issued on 15-03-2016. Despite the decree passed on 30-7-2011 still the possession could not be handed over to the decree-holder. The Court further took note of the fact that possession warrant has already been issued on 15-03-2016. Despite the decree passed on 30-7-2011 still the possession could not be handed over to the decree-holder. It is not in dispute that there is no stay of the judgment and decree. 7. The scope of the provision of Section 47 and Order 21 of the CPC has been considered by the Apex Court in the case of Brakewell Automotive Components (India) Private Limited vs. P.R. Selvam Alagappan, (2017) 5 SCC 371 wherein it is held thus: “20. 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. 21. 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. 22. 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 void-ness 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: ‘6. The following extract from this decision seems apt: ‘6. 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. 7. 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.’ 23. 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.” 8. Regard being had to the contextual facts of the present case, I do not find that any error has been committed by the Court below in rejecting the application filed by the petitioner/judgment-debtor. No case for interference under Article 227 of the Constitution of India is made out. 9. Accordingly, the instant petition sans substance and is hereby dismissed. No costs.