Devadas vs Baby Remya

M.R.Anitha, J

Petitioner is the decree-holder in E.P.73 of 2007 in O.S.153 of 2002 of Sub Court, Attingal. This original petition has been filed against the order in

E.A.229 of 2011 in the above stated E.P. dated 7.1.2016 by which petition filed under Sec.47 of the Code of Civil Procedure, 1908, to set aside the

sale was allowed.

O.S.153 of 2002 is a Suit for money. As per the decree in O.S.153 of 2002 copy of which is produced as Ext.P1, the petitioner/Decree

Holder/plaintiff was allowed to realise an amount of Rs.1,25,220/- with interest on the original amount of Rs.1,20,000/- at the rate of 6% per annum

charging the decree schedule properties. The Suit was filed after the death of the debtor against the legal representatives who are his mother, wife

and children. Against Ext.P1 decree, appeal was preferred as A.S.16 of 2011 by the respondent herein, the 3rd judgment-debtor and 5th judgment-

debtor(her minor brother) in the E.P. and copy of the appeal memorandum is marked as Ext.P2. In the appeal the challenge was that item No.2 in the

decree schedule property is not liable to be proceeded for the debt of the original defendant as it is not a property inherited by the legal representatives

of the debtor. The specific contention in the appeal was that the property belonged to the wife of the debtor who is her mother. No stay of the

execution proceedings was granted by the Appellate Court in Ext.P2 appeal since there was delay in filing the appeal. Hence the respondent here in

filed O.P.(C).397 of 2011 before this Court for stay pending consideration of Ext.P2. But as per the judgment dated 3.12.2012, this Court dismissed

the said O.P for default since the delay petition pending before the District Court was dismissed and accordingly Ext.P2 appeal was also dismissed ,

copy of which is marked as Ext.P3 . So the challenge with regard to the liability over item No.2 property was concluded by the dismissal of Ext.P2

appeal. The petitioner carried the decree in execution and the properties were brought for sale and it was purchased by the petitioner and item No.1 of

the decree schedule was delivered to the petitioner/decree holder. But E.A.229 of 2011 was filed by the respondent on the very same grounds to set

aside the sale of item No.2 of the decree schedule properties. The true copy of that E.A. has been produced as Ext.P4. By Ext.P5 order the Sub

Court, Attingal allowed Ext.P4. Against which this Original Petition has been filed.

Notice was issued to the respondent/petitioner in E.A.229 of 2011. Adv.K.P.Sujesh Kumar appeared on behalf of the respondent and both sides

were heard.

The point for consideration is, whether the impugned order setting aside the sale with respect to item No.2 property, in a petition filed under Sec. 47

of the Code of Civil Procedure, 1908 (in short the Code) is legally sustainable or not.

Admittedly the petitioner, her mother, grandmother and siblings were parties to the Original Suit and also in the execution proceedings. The Suit was

decreed allowing the petitioner/decree holder (hereinafter be referred as the petitioner) to realise the decree amount charging the plaint schedule

properties devolved upon the respondent along with other defendants from deceased Venu. Ext.P1 decree copy would prove unequivocally that a

charged decree was passed with respect to plaint schedule item Nos.1 and 2 properties which are said to have been devolved upon the

defendants/judgment debtors from deceased Venu. Now the contention of the respondent is that item No.2 property belonged to her mother and for

the liabilities of the father the plaint item No.2 property ought not have been made liable or charged. In the impugned order it has been found by the

learned Sub Judge that the certified copy of the sale deed pertaining to item No.2 property has been produced and marked as Ext.A1 and it would

reveal that item No.2 property is owned by the second defendant, the wife of deceased Venu and Venu has no manner of right over the property.

Admittedly, against the decree passed charging the plaint item No.2 property , the respondent and her minor brother filed A.S.16 of 2011 before the

District Court, Thiruvananthapuram. Ext.P2 is the copy of the Appeal memorandum. Ext.P3, copy of the judgment in O.P.(C).397 of 2011 filed by the

petitioner before this Court would further prove that the appeal filed before the District Court was dismissed in view of the fact that I.A.74 of 2011,

which was the petition to condone the delay in filing the appeal was dismissed for default and stay petition accompanying the appeal was also

dismissed. In the said circumstances, this Court found that the matter has become infructuous and hence the Original Petition was closed without

examining the merits. Ext.P4 copy of the petition filed under Sec.47 read with S.151 of the Code would show that during the pendency of the appeal

itself E.A.229 of 2011 was filed by the petitioner seeking to set aside the sale with respect to item No.2 of the decree schedule properties. The

learned Sub Judge has taken a view that execution of the decree against item No.2 property is not covered by the decree and all questions arising

between the parties to the Suit in which the decree has been passed, or their representatives, relating to execution, discharge or satisfaction of the

decree shall be determined by the Court executing the decree and not by a separate Suit as per Sec.47 (1) of the Code. The Lower Court placed

reliance on Gopalakrishna Kamath v. Bhaskara Rao (1988 (2) KLT 352), AGM Constructions (P) Ltd (M/s) v. S.Shibukumar and Others (2010 (4)

KLT 189), and also Purushothaman and Another v. Divakaran and Others (2011 KLT 127).

Gopalakrishna Kamath was a case in which the judgment-debtor approached the execution Court under Sec.47 of the Code on the ground that the

property not included or covered by the decree is delivered in execution of decree. In that case, it was held by a learned Single Judge of this court that

if property not covered by a decree is delivered in execution of the decree, there arise a situation which in law is called 'action in excess of the decree'

and in such cases proper remedy for the judgment-debtor is to recover the property delivered in excess of the decree by an application under Sec.47

and not by a separate Suit.

The issue considered in AGM Constructions (P) Ltd, was a different factual and legal issue and the sale in that case has been conducted with

respect to a stranger's property over which, the deceased debtor has no manner of right or interest. It is also held that under Sec.47 sale can be

challenged as void for illegality or in any event voidable on any other grounds other than that provided under Rule 90 of Order XXI.

In Purushothaman and Another v. Divakaran and Others also the specific law laid down was that only if it is found that the question raised by the

judgment-debtors could be raised only in execution in terms of Sec.47 of the Code, a separate Suit would be barred. It is also held that a possible

contention which defendant could raise in the Suit could not be taken as a ground for maintaining an application under Sec.47.

But in the present case the facts involved are entirely different. The grievance of the respondent/3rd judgment-debtor was that a decree was

passed charging the property of the second judgment-debtor also who is the wife of the original debtor and item No.2 property exclusively belonged to

her. Hence it cannot be attached or proceeded against for the debt due to deceased Venu, her husband and father of the respondent herein and

judgment-debtors 4 and 5 also. They are no strangers but are parties to the Suit. So none of the decision cited by the Court below actually covers the

question involved in this case.

S.47(1) of the Code provides that 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.

It is apposite in this context to discuss the case laws in the field.

In Vasudev Dhanjibhai Modi vs Rajabhai Abdul Rehman & Ors (1970 (1) SCC 670 = AIR 1970 SC 1475 = 1970Â

KHC 439) while dealing with the powers of the executing Court, it has been held that for the purpose of determining whether the Court which passed

the decree has jurisdiction to try the Suit, it is necessary to determine the facts on the decision of which the question depends and the objection does

not appear on the face of the record, executing Court cannot enter upon an enquiry into those facts and ultimately it was held that a decree which is a

nullity alone can be a subject matter of objection under Sec.47 of the Code.

Dhurandhar Prasad Singh vs Jai Prakash University And Ors (2001 (6) SCC 534 = 2001 (3) KLT SN 87 = 2001 KHC 924) was a case in which a

petition filed under Sec.47 of the Code challenging the executability of the decree passed in title Suit, was set aside and objection was allowed and the

order rejecting the objection under Sec.47 of the Code by the Executing Court was set aside. In paragraph 23 of the said decision speaks about the

powers of the Court under Sec.47 of the Code and it has been held that under Sec.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. It is also held that the powers of the Court under Sec.47 are quite different and much narrower

than its powers of appeal, revision or review. Hence it was held that executing Court can allow objection under Sec.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 the 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 inexecutable after its passing. In

that case the decree was passed against the governing body of the College which was the defendant without seeking leave of the Court to continue

the Suit against the University upon whom the interest of the original defendant devolved and impleading it. But it was found that such an omission

would not make the decree void ab initio so as to invoke application under Sec.47 of the Code and entail dismissal of execution. It is also held that the

validity or otherwise of a decree may be challenged by a properly constituted Suit or by taking any other remedy available under law on the ground of

the original defendant absented himself from the proceeding of the Suit after appearance as he had no longer any interest in the subject of dispute or

did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law.

In Kohinoor Transporters (M/s) v. State of Uttar Pradesh (2018 (18) SCC 165 = 2018 KHC 6617) it has been held that the issue as to whether

decree has been discharged or satisfied has to be determined by the executing Court under Sec.47 of the Code and executing Court must execute the

decree as it stands without adding anything to it. It is also held that the order of High Court directing the appointment of Chartered Accountant for the

purpose of determining the amount due under the decree pending execution proceedings is erroneous and hence set aside.

In Sneh Lata Goel vs Pushplata (AIR 2019 SC 824 = 2019 (3) SCC 594 = 2019 KHC 6061) while dealing with Sections 47 and 21 of the Code, it

has been held that objection as to territorial jurisdiction of Court cannot be gone into by an executing Court and it was also held that such an objection

has to be addressed before that Court and in the event the Court rejects such an application, it must be raised before the competent Court in appeal.

Executing Court has no jurisdiction to entertain such an objection.

So the above settled position of law would speak in unequivocal terms that the objection which could be raised in a proceeding under Sec.47 of the

Code is about the executability of the decree and the executing Court has no jurisdiction to go beyond the decree and examine whether the decree

passed by the Court is legal and proper. Legality or propriety of the judgment and decree has to be agitated before the appropriate forum as per law.

The execution court can not sit in appeal against the judgment and decree passed by a competent court. In other words, a decree which is a nullity

alone can be the subject matter of an objection under Sec.47 of the Code. In the present case, the contention of the respondent is that item No.2

property with respect to which a charged decree has been passed and auction sale has conducted is to be set aside because the property does not

belongs to the father(debtor) and it stands in the name of mother. But it is to be noted that the mother of the respondent and all the legal heirs were

parties to the proceedings. True, mother died pending the proceedings. Court guardian was appointed to represent them. So all these contentions were

available to the respondent and other defendants during trial. The contention of the respondent is that the Court guardian who was appointed on behalf

of them did not properly conduct the case and agitate the exclusive right of the mother with respect to item No.2 property properly before the trial

court. That in turn leads to a conclusion that the decree passed by the trial court charging item No.2 property is a mistake or an error since it does not

belong to deceased Venu who was the original debtor. So that claim ought to have been contested and brought to the notice of the Court before

passing the decree and if it was not done, the remedy available to the respondent is to file an appeal. In this case, Ext.P2 the copy of memorandum of

appeal would prove that the petitioner had already approached the appellate Court challenging the judgment and decree passed in this case. Ground

No.3 and 4 in Ext.P2 Appeal memorandum, the contention that item No.2 belonged to 2nd defendant (mother) and deceased Venu has no right or

interest over the said property has been specifically raised. The document by which item No.2 property was purchased by the 2nd defendant has also

been stated. But Ext.P3 would further go to show that appeal was happened to be dismissed for default in view of the dismissal of the petition for

condonation of delay filed along with appeal. In view of the same, Ext.P3, O.P(C).397 of 2011 was also closed since the appeal was dismissed for

default. So probably due to a wrong legal advice the respondent might have prosecuted the proceedings in E.A.229 of 2011 and did not prosecute the

appeal which was the legal remedy available to her to challenge a decree which has been passed wrongly charging item No.2 property also belonging

to her mother for the debt of the father. That cannot be stated as relating to the executability of the decree passed. The decree so passed charging

item No.2 property cannot be said as void or a nullity also. So Sec.47 of the Code has no application to the case in hand. Hence, the impugned order

passed by the Sub Judge allowing E.A.229 of 2011 filed under Sec.47 of the code in E.P.73 of 2007 is not sustainable in law and amounts to an

exercise of power not vested with the court under Sec.47 of the Code and hence it is liable to be set aside by invoking the powers of this Court under

Article 227 of the Constitution of India.

In the result the original petition stands allowed and the impugned order in E.A. 229/2011 in E.P. 73/2007 in O.S. 153/2002 dated 07.01.2016 of the

Sub Judge Attingal is set aside. In the facts and circumstances. there is no order as to cost.