The Rajiv Gandhi Super Speciality ... vs M/S Lazer Instrumentation ...
2022 Latest Caselaw 266 Kant

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             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

        DATED THIS THE 7TH DAY OF JANUARY 2022

                                   BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

          WRIT PETITION NO.205397/2019 (GM-CPC)
                          C/W
          WRIT PETITION NO.203595/2019 (GM-CPC)


W.P.No.205397/2019:

BETWEEN:

Rajiv Gandhi Super Specialty Hospital
A Unit of Raichur Institute of Medical Sciences
Raichur, Under Government of Karnataka
Department of Medical Education
Hyderabad Road
Raichur-584102
Represented by its Special Officer
And Neurosurgeon
Taken charge since 28.02.2019
Dr. Nagaraj V. Gadwal
                                                    ... Petitioner

(By Sri Santosh S. Gogi, Advocate)

AND:

M/s. Lazer Instrumentation Pvt. Ltd.,
Rep. by its Managing Director
Mr. Vinod Koshal
Carrying on business at
No.4, Chokkalingam Nagar
VellalaTeynampet
Chennai-600 086
                                                  ... Respondent
(By Sri Ravi B. Patil, Advocate)
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         This Writ Petition is filed under Article 227 of the Constitution of
India, praying to call for records in Execution Petition No.350/2013, on the
file of the Principal District Judge, Raichur and issue a writ of certiorari or
any other appropriate writ or command or direction and set aside the
order dated 16.11.2019 (Annexure-A) in Execution Petition No.350/2013,
on the file of the Principal District Judge, Raichur issuing arrest warrant
against the Special Officer of the petitioner, etc.

W.P.No.203595/2019:

BETWEEN:

The Rajiv Gandhi Super Specialty Hospital (OPEC)
Through its Chief Executive Officer
Hyderabad Road, Raichur
                                                                  ... Petitioner

(By Sri Sachin M. Mahajan, Advocate)

AND:

M/s. Lazer Instrumentation Pvt. Ltd.,
Rep. by its Managing Director
Mr. Vinod Koushall
No.4, Chikkalingam Nayar
Vella, Jeyanampet
Chennai-600 086
                                                               ... Respondent

(By Sri Ravi B. Patil, Advocate)


       This Writ Petition is filed under Article 227 of the Constitution of
India, praying to issue a writ or order or direction and set aside the
impugned order dated 14.07.2016 wherein the learned Prl. Dist. &
Sessions Judge at Raichur dismissed IA No.3 filed U/s 47 CPC in EP
No.350/2013, which is produced as Annexure-E.

       These petitions coming on for preliminary hearing in 'B' Group this
day, the Court made the following:
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                             ORDER

Both these petitions are filed by the petitioner who is the

judgment debtor in execution proceedings in E.P.No.350/2013

on the file of the Principal District Judge, Raichur.

2. W.P.No.203595/2019 is directed against the

impugned order dated 14.07.2016 passed by the trial court

whereby the application in I.A.No.3 filed by the petitioner -

judgment debtor under Section 47 of CPC was rejected by the

trial court.

3. W.P.No.205397/2019 is filed by the petitioner -

judgment debtor challenging the impugned order dated

16.11.2019 passed by the executing Court in

E.P.No.350/2013 directing issuance of arrest warrant against

the Special Officer of the petitioner.

4. Heard learned counsel for the petitioner and learned

counsel for the respondent and perused the material on

record.

5. A perusal of the material on record including the

impugned order dated 14.07.2016 passed on I.A.No.3 by the

Executing Court will clearly indicate that the Executing Court

has correctly and properly appreciated the entire material on

record and has proceeded to pass the impugned order coming

to the correct conclusion that Section 47 CPC is not applicable

to the facts and circumstances of the instant case. In this

regard it is relevant to state that the scope and ambit of

Section 47 of CPC has been reiterated by Hon'ble Apex Court

in the case of Brakewel Automative Components (India)

Private Limited vs. P.R. Selvam Alagappan reported in

(2017) 5 SCC 371 wherein it is held as under:

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 unexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no intervening developments as well as to render the decree unexecutable.

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 voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others, (1970) 1 SCC 670 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.

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 executability 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 unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, 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.

24. 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. In the light of the decision of the Apex Court in the

aforesaid judgment coupled with the fact that the petitioner -

judgment debtor remained ex parte and did not contest the

suit before the trial court which culminated in the judgment

and decree which is put into execution, apart from the fact that

the petitioner - judgment debtor had preferred an appeal in

ASSR No.127767/2019 before the Hon'ble Madras High

Court, I am of the considered opinion that the impugned order

passed by the trial court dated 14.07.2016 does not suffer

from any illegality or infirmity nor has it occasioned failure of

justice warranting interference by this court as held by the

Apex Court in Radhey Shyam & Anr. Vs. Chhabinath & Ors.

reported in (2015) 5 SCC 423.

7. Insofar as W.P.No.205397/2019 is concerned, since

the arrest warrant issued pursuant to the impugned order was

not executed as against the concerned officer, the challenge

to the said order does not survive any longer and the petition

deserves to be disposed of accordingly.

8. In the result, I pass the following:

ORDER

(i) W.P.No.205397/2019 and W.P.No.203595/ 2019 are hereby disposed of without interfering with the impugned orders passed by the Executing Court in E.P.No.350/2013.

(ii) The Executing Court is directed to proceed further in the matter after considering the objections filed by the petitioner - judgment debtor to the execution proceedings and pass appropriate orders in accordance with law.

Sd/-

JUDGE swk