WPMS/1164/2019
2021 Latest Caselaw 807 UK

     IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
            ON THE 10th DAY OF MARCH, 2021
                             BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI

      WRIT PETITION (M/S) NO. 1164 OF 2019


BETWEEN:
      Tribhuwan Kaushik                         ......Petitioner
      (Mr. Siddhartha Singh, Advocate)




AND:
      Vijay Kumar @ Buddhi Ballabh & others


                                              .....Respondents
      (Mr. Pankaj Kaushik, Advocate for respondent nos. 2 to 5)


                        JUDGMENT

Petitioner is challenging the order passed by Executing Court on 14.08.2018. By the said order, Execution Case No. 03 of 2005 filed by the plaintiff/decree holder and Execution Case No. 17 of 2010 filed by the petitioner, were consolidated and writ of possession was issued to the Civil Amin directing him to handover vacant possession of the suit property to the decree holder. The judgment rendered by Revisional Court dismissing petitioner's revision has also been put to challenge in this petition.

2. It is an admitted fact that a suit for partition was filed by Smt. Darshani Devi and several other persons in the year 1980, which was registered as Original Suit No. 61 of 1980; petitioner was

defendant in the said suit in which a preliminary decree was passed on 18.12.2018 and thereafter the parties to the suit entered into a compromise on 08.10.1998 and a final decree was prepared in terms of the compromise.

3. It is also not disputed that in the deed of compromise, the entire estate was partitioned and it was settled that parties will mutually exchange possession of the property within six months, failing which possession over the respective shares of the parties will be given to them through court.

4. It is the contention of the petitioner that property, which has come to his share in terms of the compromise deed is possessed by some tenant inducted by the decree holder; petitioner is entitled to vacant possession of his share in the property, therefore, the compromise decree cannot be executed until such tenants are evicted from petitioner's share in the property.

5. This contention of the petitioner was rejected by the Executing Court as well as the Revisional Court, therefore, petitioner has approached this Court.

6. Learned Revisional Court has given cogent reason for rejecting petitioner's revision. It has considered the compromise deed, wherein it has been stated that if possession of the property, in terms of compromise deed, is not handed over by the parties within six months than possession of such property shall be obtained through execution of decree. The Revisional Court has further considered the recital

made in the compromise deed regarding possession of other persons over the suit property, where it has been stated that they came to occupy the suit property during pendency of the suit and they have no right to continue in possession over the property.

7. From the stipulation made in the compromise deed, it is apparent that petitioner was aware that part of the suit property, including his share, is possessed by some other persons and despite this knowledge, he entered into compromise without insisting upon eviction of such persons before entering into compromise.

8. Even otherwise also, such persons who came to possess the suit property during pendency of the partition suit are bound by doctrine of lis pendens. Compromise decree cannot be said to be inexecutable merely because property, which came to petitioner's share is possessed by some persons, who were not party to the suit.

9. Section 47 of CPC, which governs the field, is reproduced as under:-

"47. Questions to be determined by the Court executing decree--(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) Omitted by Act 104 of 1976 (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. 2 [Explanation 1.--For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II--(a) For the purposes of this section, a purchaser of property at a sale in

execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]."

10. The conditions necessary for application of Section 47 are:- (a) the question must relate to execution, discharge or satisfaction of the decree and

(b) it must arise between the parties to the suit in which the decree was passed or their representatives. One purpose of this Section, as Lord Macnaughten said, is that "it is of utmost importance that all objections to execution sales should be disposed of as cheaply and as speedily as possible". The Executing Court cannot go behind the decree unless it is shown that it is passed by a Court, having inherent lack of jurisdiction, which would make it a nullity. The Executing Court cannot go into a roving enquiry to find out whether the decree passed by the Court, which has passed it, is one without jurisdiction. Want of jurisdiction must be apparent. All questions relating to execution, discharge and satisfaction of the decree shall be determined by the Executing Court and not by a separate suit. If a decree is in any way ambiguous, the Executing Court can always interpret it with reference to the judgments and pleadings.

11. Powers available under Section 47 of C.P.C. are quite different and much narrower than those available in appeal/revision or review. Executing court can neither travel behind decree nor sit in appeal over the same or pass any order jeopardising rights of parties thereunder. A decree is unexecutable only on limited grounds where it suffers from jurisdictional error/infirmity or is void and a nullity, apart from the

ground that decree is incapable of execution under law, either because the same was passed in ignorance of some provision of law or a law was subsequently promulgated making a decree unexecutable after its passing. An erroneous decree cannot be equalled with one which is a nullity.

12. Even otherwise also, if the term of decree are ambiguous, the Executing Court can look into the pleading and the judgment, but it cannot go behind the decree, as held by Hon'ble Supreme Court in the case of Topanmal Chhotamal vs Kundomal Gangaram And others reported in AIR 1960 SC 388. Para 5 of the said judgment is extracted below:-

"5. The question is whether in such circumstances an executing Court can go behind the decree & give the relief to the appellant which was expressly denied to him in the suit. The question so posed can only have one answer. It is a well-settled principle that a Court executing a decree cannot go behind the decree: it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit. If the contention of the appellant were to be accepted, it would contravene the said principle; for, while the decree as construed by us, has directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the said partners. While the decree excluded personal liability, the executing Court would be imposing the same. This cannot obviously be done."

13. In the case of Brakewel Automotive Components (India) (P) Ltd. v. P.R. Selvam Alagappan, reported in (2017) 5 SCC 371, Hon'ble Supreme Court has held as under:-

"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 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 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 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.

23. 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.

24. On a consideration of all relevant aspects in the entirety, we are thus disinclined to sustain the impugned orders and hereby set-aside the same. The appeals are allowed. The Executing Court would proceed with the execution proceedings and take it to the logical end with utmost expedition. No costs."

14. In view of the legal position, as discussed above, the objection raised by the petitioner regarding executability of the decree is without any substance.

15. Thus, there is no scope for interference with the judgment and orders passed by learned Courts below, while exercising power under Section 227 of the Constitution. Accordingly, writ petition fails and is hereby dismissed.

(MANOJ KUMAR TIWARI, J.) Navin