Devendra Gupta Alias Tinku And Others vs Usha Devi & Others

Manoj K. Tiwari, J

This Civil Revision has been filed against the order dated 15.04.2019 passed by Ist Additional District Judge, Haldwani, District Nainital in SCC Execution Case No. 01 of 2014, whereby revisionists objection filed under Section 47 C.P.C. has been rejected.

Revisionists are tenants; while, respondents are the landlord. Respondents filed a suit for ejectment, arrears of rent and damages against the revisionists, which was registered as SCC Suit No. 14 of 2012. In paragraph no. 2 and prayer A of the plaint, boundaries of the tenanted premises were given. Since revisionists did not appear before the learned trial Court despite notice, therefore, learned trial Court proceeded ex-parte against them and ultimately an ex-parte decree was passed on 23.07.2014. Revisionists moved an application under Order 9 Rule 13 C.P.C. for setting aside ex-parte decree, which was rejected on 29.09.2016. Revisionists challenged the order dated 29.09.2016 by filing Civil Revision No. 10 of 2018, which was dismissed by this Court vide judgment dated 20.03.2019.

Respondents put the decree passed by the learned trial Court into execution.

Before the Executing Court, revisionists filed objection under Section 47 C.P.C. contending that the decree holders have not produced any document to prove their title over the property in dispute and further that names of decree holders are not recorded in the revenue record, therefore, the decree is not executable. It was further stated that the decree has been obtained by the decree holders by misrepresentation of facts and further that the disputed property is standing over Nazul land. It was further contended that the description of the premises in question as given in the decree does not match with the suit property, therefore, the decree is un-executable.

Learned Execution Court has rejected the objection filed by the revisionists vide order dated 15.04.2019. Thus, feeling aggrieved, revisionists have approached this Court under Section 115 of C.P.C.

Heard learned counsel for the revisionists and perused the record.

It is settled position in law 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. The issue raised by the revisionists in their objection under Section 47 of C.P.C. cannot be considered by the Executing Court under Section 47 of C.P.C. The question of lack of title over the property in dispute raised by the revisionists cannot be gone into by the Executing Court. Similarly, the question whether disputed property is standing over Nazul land or over free land makes no difference so far as the relationship of landlord and tenant is not disputed by the revisionists. The fact that landlord has been granted lease in respect of Nazul land by the State Government, even if proved, does not make the decree unexecutable.

Learned Executing Court has considered the matter in great detail and has dealt with all the objections raised by the revisionist regarding the question of identity of the premises in question. Learned Executing Court has rightly held that it is not the case of the revisionists that they are in possession of any property other than the property for which execution has been filed by the landlord. It is also not the case of the revisionists that the suit for ejectment was filed against them in respect of any other part of the premises in question. In their objections, revisionists have admitted that they are tenant of the respondents on monthly rent of Rs.1,200/-.

Learned counsel for the revisionists submits that decree has been obtained by the decree holder by suppression of facts, therefore, the decree is not executable and the learned Executing Court has erroneously rejected the objection filed under Section 47 of C.P.C.

Hon'ble Supreme Court in the case of Rafique Bibi (Dead) By LRS. Vs. Sayed Waliuddin (Dead) By LRS. and others, reported in (2004) 1 SCC 287 has held as under:

"8. A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any callateral attack or in incidental proceedings.

In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors., [1970] 1 SCC 670, it has been held :-

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. But where the objection as to 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.

It is not the plea of the appellant judgment-debtors that the court which passed the decree did not have the jurisdiction to do so. It is also not their case that a ground for eviction of the tenants on the ground of default in payment of arrears of rent was not available to the respondent landlords within the meaning of the Delhi and Ajmer Act or the successor Rajasthan Act. The only submission made is that before passing the decree the Court should have afforded the tenant an opportunity of depositing the rent in arrears, which was not done. Firstly, we find merit in the submission of the learned counsel for the respondents that it was for the tenants to have invited the attention of the Court by making an application in that regard so as to avail an opportunity of wiping out the effect of their default, which gave rise to cause of action to the respondents, by depositing the rent during the pendency of the suit. That having not been done, the appellant tenants cannot be heard to urge any infirmity in the decree. Secondly, accepting it at its face value, in the eyes of law, the challenge seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an "illegal decree", but that in itself would not amount to branding the decree as "without jurisdiction" or "a nullity". The plea which is sought to be urged in the execution proceedings was available to be raised by the tenants before the High Court in an appeal against the decree. Such a plea was not taken before the passing of the decree and cannot now be allowed to be urged during the execution proceedings. It is unfortunate that a decree of eviction passed in a suit commenced in the year 1956 and culminating in a final decree in the year 1986 is still starving for its execution."

Their Lordships of Hon'ble Supreme Court in the case of Ravinder Kaur Vs. Ashok Kumar and others, reported in (2003) 8 SCC 289, while dealing with a similar objection raised by the tenant regarding identity of the suit property, have observed in paragraph no. 22 of the said judgment as under:

"Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. This type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system."

Their Lordships of Hon'ble Supreme Court in the case of Brakewel Automotive Components (India) Private Limited Vs. P.R. Selvam Alagappan, reported in (2017) 5 SCC 371, have analyzed the scope of powers of an Executing Court under Section 47 C.P.C. Paragraph nos. 20, 21, 22 & 23 of the said judgment are extracted below:

"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.

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.

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:

"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.

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."

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."

Hon'ble Supreme Court in the matter of Haryana Vidyut Prasaran Nigam Limited and another Vs. Gulshan Lal and others, reported in (2009) 13 SCC 354, has held as under:

"17. As indicated hereinbefore, for the purpose of allowing an objection filed on behalf of a judgment debtor under Section 47 of the Code of Civil Procedure, it was incumbent on him to show that the decree was ex facie nullity. For the said purpose, the court is precluded from making an indepth scrutiny as regards the entitlement of the plaintiff with reference to not only his claim made in the plaint but also the defence set up by the judgment - debtor. As the judgment of the Trial Court could not have been reopened, the correctness thereof could not have been put to question.

It is also well-known that an Executing Court cannot go behind the decree. If on a fair interpretation of the judgment, Order and decree passed by a court having appropriate jurisdiction in that behalf, the reliefs sought for by the plaintiff appear to have been granted, there is no reason as to why the Executing Court shall deprive him from obtaining the fruits of the decree.

In Deepa Bhargava v. Mahesh Bhargava [2008 (16) SCALE 305], this Court held as under:

"9...An executing court, it is well known, cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is. A default clause contained in a compromise decree even otherwise would not be considered to be penal in nature so as to attract the provisions of Section 74 of the Indian Contract Act."

Similar view has been expressed by their Lordships of Hon'ble Supreme Court in the case of Harpal Singh Vs. Ashok Kumar and another, reported in (2018) 11 SCC 113. Paragraph nos. 6, 7 & 8 of the judgment are extracted below:

"6. The validity of a decree can be challenged before an executing court only on the ground of an inherent lack of jurisdiction which renders the decree a nullity. In Hira Lal Patni v Sri Kali Nath, this Court held thus:

"4...The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subjectmatter of the suit or over the parties to it..."

In Sunder Dass v Ram Prakash, this court held that:

"3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan [AIR 1954 SC 340 : (1955) 1 SCR 117] and Seth Hiralal Patni v. Sri Kali Nath [AIR 1962 SC 199 : (1962) 2 SCR 747]. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent."

[See also Gaon Sabha v Nathi]

In the present case, the finding of fact which was arrived at by the executing Court in the course of its decision on the objection to execution is that the land had ceased to be agricultural land and was not being used for purposes contemplated under the Delhi Land Reforms Act 1954. The High Court while affirming the view of the executing court made the following observations:

"7...But in the present case, the Decree Holder had shown electricity bills pertaining to the same Khasra number and the Court also considered that most rural lands in Delhi have become urbanized and private unauthorized colonies have mushroomed on agricultural lands. Therefore, in fact, the said land had lost its character of agricultural land. Besides, the suit was filed under Section 6 of the Specific Relief Act for declaration and possession along with injunction and other consequential reliefs. The executing Court found that the objector had not shown as to how the said suit was not maintainable. It relied upon the dicta of the Supreme Court in Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199 which held that:

"4.....The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction."

In the case of Pratibha Singh and another Vs. Shanti Devi Prasad and another, reported in (2003) 2 SCC 330, their Lordships of Hon'ble Supreme Court have held that a successful plaintiff should not be deprived of the fruits of decree. In other words, a decree of a Competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. Paragraph no. 17 of the said judgment is extracted below:

"17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the CPC depending on the facts and circumstances of each case-which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 of the CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke Section 47 of the CPC."

After deletion of sub-section 2 of Section 47 C.P.C., objection filed under Section 47 C.P.C. can be summarily dismissed.

In view of the aforesaid discussion, there is no reason to interfere with the impugned order in exercise of powers under Section 115 of C.P.C.

Consequently, Civil Revision fails and is dismissed.