Delhi High Court
Benchmark International vs Sky Barge Freight Pvt. Ltd. on 15 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Ex.F.A. No.12/2017
% 15th May, 2017
BENCHMARK INTERNATIONAL ..... Appellant
Through: Mr. Vivek Luthra, Advocate.
versus
SKY BARGE FREIGHT PVT. LTD. ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.18283/2017 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
Ex.F.A. No.12/2017 and C.M. No.18282/2017 (stay)
2. This Execution First Appeal is filed by the
appellant/defendant/judgment debtor challenging the impugned order
dated 28.2.2017 whereby the objections filed by the
appellant/judgment debtor have been dismissed.
3. The facts of the case are that against the
appellant/judgment debtor a suit under Order XXXVII of the Code of
Civil Procedure, 1908 (CPC) was filed and which suit was decreed in
terms of the order dated 20.12.2007 as nobody on behalf of the
appellant/judgment debtor pursued the leave to defend application
filed. This order dated 20.12.2007 resulting in the decree against the
appellant/judgment debtor reads as under:-
"Suit No.193/06
20.12.07
Present: Counsel for the plaintiff.
None for the defendant.
There is a suit under order 37 CPC. After service of summons of
judgment on the defendant it filed leave to defend application on 14.2.07.
Alongwith the application defendant has also filed counter claim and set of
under Order 8 rule 6 and 6A of CPC on the same day. Court fee had not
been affixed on the counter claim. This counter claim was inadvertently
taken up and the same is not maintainable at this stage and the same could
have been filed alongwith written statement only. Counter claim be
returned to the defendant. Today case is fixed for arguments on leave to
defend application. However defendant has not appeared since morning
despite calls. It is 2.30 pm. Leave to defend application is dismissed in
default. Consequently suit of the plaintiff is decreed in the sum of
Rs.5,98,291.45 ps together with pendentelite and future interest @ 9% per
annum. Cost of the suit is also awarded. Decree sheet be drawn and file be
consigned to record room.
(A.K. Pathak)
ADJ/Delhi
20/12/07"
4. When the money decree was sought to be executed, the
appellant/judgment debtor contended that the execution was not
maintainable because the suit under Order XXXVII CPC filed itself
was not maintainable as it was based on statement of accounts. It was
also pleaded and argued by the appellant/judgment debtor that the
amounts with respect to two cheques in question have been already
paid to the respondent/decree holder, and therefore, there were no
amounts due to the respondent/decree holder. It was therefore argued
that a fraud has been perpetrated on the appellant/judgment debtor and
hence the decree should be held to be inexecutable.
5. The court below has dismissed the objections filed by the
appellant/judgment debtor, and in the opinion of this Court rightly,
inasmuch as, merits of the matter cannot be looked into in the
execution proceedings. An executing court cannot go behind a decree
i.e executing court cannot go on the aspects of merits which had to be
decided in the suit i.e the leave to defend application of the
appellant/judgment debtor filed in the suit under Order XXXVII CPC.
Admittedly the judgment and decree dated 20.12.2007 has become
final as there was no challenge to the same, and therefore, the issues
argued and which are only the merits of the matter and are thus such
that they do not fall in the alleged category of judgment being obtained
by fraud. Matters argued are with respect to merits and therefore it
cannot be alleged to be fraud for the sake of convenience for holding
that the execution cannot lie.
6. The objections were thus rightly dismissed by the Court
below. Dismissed.
MAY 15, 2017 VALMIKI J. MEHTA, J
Ne
