Devadas vs Baby Remya
2021 Latest Caselaw 15723 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                    THE HONOURABLE MRS. JUSTICE M.R.ANITHA

             FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943

                            OP(C) NO. 2280 OF 2016

       OS 153/2002 OF PRINCIPAL SUB COURT,ATTINGAL, THIRUVANANTHAPURAM

PETITIONER

             DEVADAS
             S/O NANU, AJITH SADANAM,PALAYAMKUNNU,KOVOOR DESOM,CHEMMARUTHY
             VILLAGE.
             BY ADVS.
             SRI.M.S.UNNIKRISHNAN
             SMT.M.ARDRA KRISHNAN
             SRI.JITHIN PAUL VARGHESE
             SMT.A.G.NISHA
             SRI.K.SUNIL
             SMT.C.V.VEENA


RESPONDENT

             BABY REMYA
             D/O VENU,POLKAVILA VEEDU,PALAYAMKUNNU, KOVOOR DESOM,CHEMMARUTHY
             VILLAGE-695146.
             BY ADV SRI.K.P.SUJESH KUMAR



      THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22.7.2021
THE COURT ON 30.07.2021 DELIVERED THE FOLLOWING:
 O.P.(C)No.2280 of 2016

                                             2

                                     JUDGMENT

Dated : 30th July, 2021

1. 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.

2. 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 3 rd

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 O.P.(C)No.2280 of 2016

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 O.P.(C)No.2280 of 2016

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.

3. 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.

4. 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.

5. 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 O.P.(C)No.2280 of 2016

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.

6. 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 O.P.(C)No.2280 of 2016

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 O.P.(C)No.2280 of 2016

(3) KLT 127).

7. 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.

8. 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.

9. In Purushothaman and Another v. Divakaran and Others O.P.(C)No.2280 of 2016

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.

10. 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.

11. 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 O.P.(C)No.2280 of 2016

to the execution, discharge or satisfaction of the

decree,shall be determined by the court executing the

decree and not by a separate suit.

12. It is apposite in this context to discuss the case

laws in the field.

13. In Vasudev Dhanjibhai Modi vs Rajabhai Abdul Rehman

& Ors (1970 (1) SCC 670 = AIR 1970 SC 1475 = 1970 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.

14. 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 O.P.(C)No.2280 of 2016

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 O.P.(C)No.2280 of 2016

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.

15. 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 O.P.(C)No.2280 of 2016

Accountant for the purpose of determining the amount due

under the decree pending execution proceedings is

erroneous and hence set aside.

16. 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.

17. 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 O.P.(C)No.2280 of 2016

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 O.P.(C)No.2280 of 2016

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 O.P.(C)No.2280 of 2016

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.

18. 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.

Sd/-

M.R.Anitha, Judge Mrcs/26.7.

O.P.(C)No.2280 of 2016

APPENDIX OF OP(C) 2280/2016

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE DECREE DATED 29.03.2007 IN O.S.153/2002 BEFORE THE SUB COURT,ATTINGAL EXHIBIT P2 A TRUE COPY OF THE APPEAL MEMORANDUM IN THE A.S.16/2011 OF THE DISTRICT COURT,THIRUVANANTHAPURAM EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 03.12.2012 IN O.P.(C)397/2011 OF THIS HON'BLE COURT EXHIBIT P4 A TRUE COPY OF THE E.A.229/2011 I E.P.73/20074 IN O.S.153/2002 BEFORE THE SUB COURT,ATTINGAL EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 07.01.2016 IN E.A.229/2011 IN E.P.73/20074 IN O.S.153/2002 OF THE SUB COURT,ATTINGAL.