S. Godhandaraj vs R. Ayyamperumal
2022 Latest Caselaw 9446 Ker

OP(C) NO. 1244 OF 2022
                                      1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
  THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                         OP(C) NO. 1244 OF 2022
AGAINST THE ORDER/JUDGMENT IN OS 1180/2012 OF PRINCIPAL SUB
                           COURT, TRIVANDRUM
PETITIONER/S:
          S. GODHANDARAJ, (MISTAKENLY TYPED AS 'GODENDARAJ'
          IN THE LOWER COURT PROCEEDINGS),AGED 49, SON OF
          SIVAGURUNATHAN, T.C. 38/2936 ( 3 ),SREEGANGA,
          ( VIVEKANANDHA NAGAR, NEAR TAMIL SCHOOL ),CHALA P
          O, THIRUVANANTHAPURAM,, PIN - 695038

            BY ADVS.
            AYYAPPAN SANKAR
            S.HRIDYA


RESPONDENT/S:
    1     R. AYYAMPERUMAL, AGED 49 YEARS, SON OF RAMASWAMY
          ACHARI,SOFTWARE ENGINEER, RESIDING AT T.C.20/41,
          BHAGAVATHY ILLAM, KARAMANA P O, THYCAUD VILLAGE,
          THIRUVANANTHAPURAM,, PIN - 695002

    2       BALAVINAYAKAM, AGED 45 YEARS, SON OF
            SIVAGURUNADHAN,M/S. PERFECT ENGINEERING CO.,
            P.O. BOX 32627, JEBEL ALI, DUBAI (UNITED ARAB
            EMIRATES),FROM T.C. 38 / 2936 ( 3 ), VIVEKANANDHA
            NAGAR ),TAMIL SCHOOL, CHALAI P O,THYCAUD VILLAGE,
            THIRUVANANTHAPURAM,, PIN - 695036

            BY ADVS.
            Anjali A. S.
            PRAVEEN VYASAN(P-200)


     THIS     OP    (CIVIL)     HAVING    COME   UP    FOR    ADMISSION   ON
25.08.2022,    THE      COURT    ON   THE   SAME      DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 1244 OF 2022
                                   2

                            JUDGMENT

Aggrieved by the common order in

E.A.Nos.230/2022 & 265/2022 in E.P.No.211/2019 in

O.S.No.1180/2012 (Ext.P12) of the Court of the Principal

Subordinate Judge, Thiruvananthapuram, the 2nd

judgment debtor in the execution petition is before this

Court. The decree holder and the 1st judgment debtor are

the respondents.

2. The relevant facts, for the determination of the

original petition, are: the petitioner and the 2 nd

respondent are brothers. The 2nd respondent was

employed abroad. He had executed a power of attorney

in favour of the petitioner to manage the affairs of his

house, which is situated on the first floor of the property

belonging to the petitioner. The 1st respondent is the

close friend of the petitioner. The petitioner had availed

financial assistance from the 1st respondent to pay off OP(C) NO. 1244 OF 2022

the debts of the 2nd respondent. As security for

repayment of the loan amount, the petitioner on the

strength of the power of attorney, executed Ext.P3

agreement of sale with the 1st respondent. The sale

consideration was fixed at Rs.10,00,000/-, which was

much below the actual market price. The 2nd respondent

had failed to repay the amount and put the entire burden

on the shoulder of the petitioner. Taking undue

advantage of the situation, the 1st respondent issued

lawyer notices to the petitioner and the 2 nd respondent

and, thereafter, filed the suit before the court below. On

coming to learn about the suit, the relationship between

the petitioner and the 2nd respondent got strained.

Hence, the petitioner repaid the entire debt to the 1 st

respondent. In fact, the petitioner paid an excess

amount of Rs.1,50,000/-. The petitioner reposed

confidence in the 1st respondent, that he would not

contest the suit. However, the 1st respondent proceeded OP(C) NO. 1244 OF 2022

with the suit. The 2nd respondent contested the suit,

after cancelling the power of attorney executed in favour

of the petitioner, by filing Ext.P6 written statement. The

court below, by Ext.P7 judgment and Ext.P8 decree,

decreed the suit. The decree has been put to execution.

The 2nd respondent did not deposit the decree debt and

the 1st respondent has proceeded against the property.

Only recently, the petitioner came to learn about the

unfair conduct of the 1st respondent. Immediately, he

filed Ext.P10 application under Section 47 of the Code of

Civil Procedure (in short "Code"), interalia, contending

that the decree is a nullity. The 1st respondent objected

to the application through Ext.P11. The Court below,

without appreciating the contentions raised by the

petitioner in Ext.P10 application, dismissed the same by

Ext.P12 order. Ext.P12 is manifestly illegal and

unsustainable in law. Hence, the original petition. OP(C) NO. 1244 OF 2022

3. Heard; Sri. Ayyappan Sankar, the learned counsel

appearing for the petitioner and Sri.Praveen Vyasan, the

learned counsel appearing for the 1st respondent.

4. Sri. Ayyappan Sankar vehemently argued that

the court below has erroneously rejected Ext.P10

application by the impugned order without appreciating

the scope and purport of Section 47 of the Code.

According to him, the 1st respondent has perpetrated

fraud on the petitioner and the 2nd respondent.

Therefore, the decree is nullity. When fraud is

perpetrated, the execution court can refuse to execute

the decree. He placed emphasis on the decisions of the

Honourable Supreme Court in Brakewel Automotive

Components (India) Pvt. Ltd. (M/s.) vs. P.R. Selvam

Alagappan [2017 KHC 6211], A.V. Papayya Sastry

and Others vs. Government of A.P. and others

[2007 KHC 3240], Meghmala and others vs.

G.Narasimha Reddy and others [2010 KHC 4577] OP(C) NO. 1244 OF 2022

and the decision of this Court in India Cements

Capital limited (M/s.) vs. William and others [2015

(4) KHC 728], to canvass the position that the

application under Section 47 is maintainable when a

decree is obtained by fraud. He has prayed that the

impugned order may be set aside and the decree may be

declared to be unexecutable.

5. Sri.Praveen Vyasan countered the above

submission and contended that the petitioner has no

locus standi to file Ext.P10 application. In fact there is

no decree passed against him. The owner of the

property - the 2nd respondent - has not appealed against

Ext.P7 and Ext.P8 judgment and decree and is not

contesting the execution petition. The 2nd respondent

has categorically stated in the reply notice send to the

1st respondent that he is willing to perform his part of

the contract. Even though the petitioner was acting as

the power of attorney holder of the 2nd respondent - his OP(C) NO. 1244 OF 2022

brother - and had alleged that he had repaid the entire

sale consideration, he has refused to mount the box and

let in evidence. The power of attorney was subsequently

cancelled. The sole intention of the petitioner is to

protract the final determination of the execution

petition. The petitioner has resisted the execution

petition on the ground that he has approached this

Court. There is no bonafides on his part. Hence, the

original petition may be dismissed.

6. The point is whether there is any error or

illegality in Ext.P12 order passed by the court below.

7. The suit was filed by the 1 st respondent

against the petitioner and the 2nd respondent,

seeking a decree for specific performance of an

agreement of sale that was executed by the petitioner,

acting as the power of attorney holder of the 2 nd

respondent. The petitioner did not contest the suit.

Even though he has alleged to have repaid the OP(C) NO. 1244 OF 2022

debt, he wilfully refused to mount the box and let in any

evidence. His brother - the 2nd respondent - owner of the

property - has stated in Ext.B2 reply notice that he is

ready and willing to perform his part of the contract.

Admittedly, the property belongs to the 2 nd respondent,

who has cancelled the power of attorney in favour of the

petitioner.

8. The Trial Court, after appreciating the pleadings

and materials on record, decreed the suit as against the

2nd respondent, directing him to execute the sale deed in

respect of the 1st floor of the two storied building situated

in the plaint schedule property within two months of the

date of the decree. There is no decree against the

petitioner. The 2nd respondent has not challenged the

decree or has complied the decree, compelling the 1 st

respondent to file E.P.No.211/2019. The execution petition

was filed in 2019. The petitioner is not a party in the

execution petition.

9. Surprisingly on 08.06.2022, the petitioner OP(C) NO. 1244 OF 2022

has filed Ext.P10 application under Section 47 of the

Code to decide the dispute between him and the 1 st

respondent, relating to the execution discharge and

satisfaction of the decree. The application is opposed by

the 1st respondent through Ext.P11, and the court below

has passed the impugned Ext.P12 order.

10. The Honourable Supreme Court in Brakewel

Automotive Components (India) Pvt. Ltd. (M/s.)

(supra) considering the scope and purport of Section 47

has held as follows:

"19. 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.

20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to OP(C) NO. 1244 OF 2022

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.

21. 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:

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 OP(C) NO. 1244 OF 2022

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."

22. 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 OP(C) NO. 1244 OF 2022

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".

11. Therefore, the law is quite succinctly laid down

by the Honourable Supreme Court in the above decision

and a plethora of precedents that the execution court is

not empowered to travel behind the decree nor sit in

appeal over the same and pass any order jeopardizing

the rights of the parties unless the court which passed

the decree lacks inherent jurisdiction.

12. Recently, a three Judge Bench of the Honourable

Supreme Court in Rahul S. Shah vs. Jinendra Kumar

Gandhi and others [2021 (4) KHC 148] has, inter-alia,

held an application under Section 47 must be one arising

between the parties and the dispute must relate to OP(C) NO. 1244 OF 2022

execution, discharge or satisfaction of the decree.

Further, execution proceedings should not be permitted

to be misused and to obstruct justice.

13. Undisputedly, in the case at hand the owner of

the property, that is the 2nd respondent, against whom

the decree is passed, has no grievance. Neither has he

challenged the decree nor resisted the execution

petition. The petitioner, who is a rank outsider and has

remained a mute spectator, all of a sudden at the fag end

of the execution proceeding i.e., at the eve of the

delivery of the property, has come up with the present

application, seeking adjudication of an alleged dispute

on the ground that the decree is a nullity due to the

fraud perpetrated by the 1st respondent. The petitioner

has no locus standi to file the application because he has

no interest in the property, he is not a judgment debtor,

no decree is passed against him and the true owner of

the property has no grievance.

OP(C) NO. 1244 OF 2022

I do not find any ground or merit in the claim raised

by the petitioner, which is totally unsustainable in law

and beyond the scope and purport of Section 47 of the

Code and well explained in Brakewel Automotive

Components (India) Pvt. Ltd. (M/s.) and Rahul S.

Shah (supra). The intention of the petitioner, as found

by the court below, is only to sabotage the 1st respondent

from enjoying the fruits of the decree. There is no error

or illegality in Ext.P12 order warranting interference by

this Court under Article 227 of the Constitution of India.

The original petition fails and is dismissed.

Sd/-

C.S.DIAS, JUDGE rkc/25.08.22 OP(C) NO. 1244 OF 2022

APPENDIX OF OP(C) 1244/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE PHOTOCOPY OF THE SETTLEMENT DEED NO.3040/2001 DATED 19.11.2001 OF CHALA S.R.O.

Exhibit P2 TRUE PHOTOCOPY OF THE GENERAL POWER OF ATTORNEY DATED 12.7.2010 EXECUTED BY 2ND RESPONDENT IN FAVOUR OF PETITIONER

Exhibit P3 TRUE PHOTOCOPY OF THE AGREEMENT FOR SALE EXECUTED BY THE PETITIONER IN FAVOUR OF THE 1ST RESPONDENT ON 01.04.2011

Exhibit P4 TRUE PHOTOCOPY OF THE PLAINT IN O.S.

NO.1180/2012 FILED BY THE 1ST RESPONDENT IN THE SUB COURT, THIRUVANANTHAPURAM, IN THE MONTH OF SEPTEMBER 2012

Exhibit P5 TRUE PHOTOCOPY OF THE RECEIPT DATED 17.11.2014 SIGNED AND ISSUED BY THE 1ST RESPONDENT AND SIGNED BY HIS WIFE AS ONE OF THE WITNESSES

Exhibit P6 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT DATED 27.10.2015 FILED BY THE 2ND RESPONDENT/ 1ST DEFENDANT IN O.S.1180/2012

Exhibit P7 TRUE PHOTOCOPY OF THE JUDGMENT DATED 18.12.2018 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM IN O.S. NO.1180/2012

Exhibit P8 TRUE PHOTOCOPY OF THE DECREE DATED 18.12.2018 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM IN O.S. NO.1180/2012

Exhibit P9 TRUE PHOTOCOPY OF THE E.A. NO.230/2022 FILED BY PETITIONER IN E.P. NO.211/2019 IN O.S. NO.1180/2012 ON THE FILE OF HON'BLE PRINCIPAL SUB COURT, OP(C) NO. 1244 OF 2022

THIRUVANANTHAPURAM DATED 28.5.2022

Exhibit P10 TRUE PHOTOCOPY OF THE E.A. NO.265/2022 FILED BY PETITIONER IN E.P. NO.211/2019 IN O.S. NO.1180/2012 ON THE FILE OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM

Exhibit P11 TRUE PHOTOCOPY OF THE OBJECTION DATED 06.06.2022 TO E.A. NO.299/2022 IN E.P. NO.211/2019 IN O.S. NO.1180/2012 ON THE FILE OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM FILED BY THE 1ST RESPONDENT

Exhibit P12 TRUE PHOTOCOPY OF THE COMMON ORDER DATED 20.06.2022 IN E.A. 230/2022 AND E.A.

265/2022 IN E.P. 211/2019 IN O.S.

1180/2012 OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM