HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

CIVIL REVISION PETITION No.3444 OF 2016

Between:

1. Md. Showkath Ali, S/o. Ghouse Saheb,

Occ: Business, R/o. Near Big Mosque,

Ongole Town, Prakasam District.

2. Md.Hameed, S/o. Ghouse Saheb,

Occ: Business, R/o. Near Big Mosque,

Ongole Town, Prakasam District. …. Petitioners

Versus

1. Chebrolu Saraswathamma,

D/o. Late Ananthaiah, R/o.D.No.1-120A(3),

4

th

Lane, Gopalanagar, Ongole Town,

Prakasam District. …. Respondent.

DATE OF ORDER PRONOUNCED : 15.10.2026

SUBMITTED FOR APPROVAL :

HON'BLE SRI JUSTICE PURUSHOTTAM KUMAR CHINTALAPUDI

1. Whether Reporters of Local Newspapers

may be allowed to see the order? Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? Yes/No

2. Whether His Lordship wishes to see

The fair copy of the order? Yes/No

_____________________________________

PURUSHOTTAM KUMAR CHINTALAPUDI, J

* HON'BLE SRI JUSTICE PURUSHOTTAM KUMAR

CHINTALAPUDI

+ C.R.P. No.3444 OF 2016

% 15.10.2026

# Between:

1. Md. Showkath Ali, S/o. Ghouse Saheb,

Occ: Business, R/o. Near Big Mosque,

Ongole Town, Prakasam District.

2. Md.Hameed, S/o. Ghouse Saheb,

Occ: Business, R/o. Near Big Mosque,

Ongole Town, Prakasam District. …. Petitioners

Versus

1. Chebrolu Saraswathamma,

D/o. Late Ananthaiah, R/o.D.No.1-120A(3),

4

th

Lane, Gopalanagar, Ongole Town,

Prakasam District. …. Respondent.

! Counsel for the Petitioners : Nimmagadda Revathi

^ Counsel for the Respondent : Naga Praveen Venkayalapati

> Head Note:

? Cases referred:

1. (2004) 1 SCC 287

2. AIR 2004 SC 4377

3. (2007) 2 SCC 551

4. AIR 1991 Calcutta 161

5. AIR 191 Punjab & Haryana

6. 1970 (1) SC 670

7. (2017) 5 SCC 371

8. C.A. No.10047/2025 (SLP© No.1842/2023, Dt.05.08.2025

9. AIR 1954 SC 340(1)

10. (2012) 4 SCC 751

11. (1962) 2 SCR 747

12. AIR 1987 Orissa 264

This Court made the following:

Date of reserved for orders : 24.07.2026

Date of pronouncement :15.10.2026

Date of uploading :15.10.2026

Neutral Citation: _______________

APHC010697802016

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

[3606]

THURSDAY, THE 15

TH

DAY OF OCTOBER 2026

PRESENT

THE HON'BLE SRI JUSTICE PURUSHOTTAM KUMAR

CHINTALAPUDI

CIVIL REVISION PETITION No.3444 OF 2016

Between:

1. Md. Showkath Ali, S/o. Ghouse Saheb, Occ: Business, R/o. Near

Big Mosque, Ongole Town, Prakasam District.

2. Md.Hameed, S/o. Ghouse Saheb, Occ: Business, R/o. Near Big

Mosque, Ongole Town, Prakasam District.

...Petitioners

AND

1. Chebrolu Saraswathamma, D/o. Late Ananthaiah, R/o.D.No.1-

120A(3), 4

th

Lane, Gopalanagar, Ongole Town, Prakasam District.

...Respondent

Petition, under Section 115 of the CPC, is filed by the

petitioners aggrieved by the order, dated 23-06-2016, passed in

E.A. No.1185 of 2014 in E.P. No.49 of 2008 in O.S. No.56 of 2006,

by the Principal Senior Civil Judge at Ongole.

IA No.1 OF 2016 (CRPMP 4420 OF 2016)

Petition under Section 151 CPC praying that in the

circumstances stated in the affidavit filed in support of the petition,

the High Court may be pleased to stay all further proceedings in

E.P. No.49 of 2008 in O.S. No.56 of 2006 on the file of the Principal

Senior Civil Judge, at Ongole, Pending disposal of main Revision

Petition.

IA No.1 OF 2018

Petition under Section 151 CPC praying that in the

circumstances stated in the affidavit filed in support of the petition,

the High Court may be pleased to extend the interim order dated

23.12.2016 in C.R.P M.P. No.4420 of 2016 in CRP No.3444 of 2016

until further orders.

IA No.1 OF 2020

Petition under Section 151 CPC praying that in the

circumstances stated in the affidavit filed in support of the petition,

the High Court may be pleased to direct the registry to enlist I.A.No.

1 of 2018 in CRPMP No.4420 of 2016 in CRP.No.3444 of 2016

under the caption for "extension of interim order" in tomorrow's

cause list in view of the imminent urgency in the matter, in the

interests of justice.

Counsel for the Petitioners : Nimmagadda Revathi

Counsel for the Respondent : Naga Praveen Vankayalapati

The Court made the following

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C.R.P.No.3444/2016

ORDER:

This Revision is preferred under Section 115 of Code of Civil

Procedure, 1908 (In short, referred as the „Code‟) seeking the relief

against the impugned order, dated 23.06.2016, passed in E.A.

No.1185 of 2014 in E.P. No.49 of 2008 in O.S. No.56 of 2006 on the

file of the Court of Principal Civil Judge (Senior Division), Ongole,

Prakasam District, wherein the learned Judge dismissed the E.A.

filed by the petitioners, seeking the relief under Section 47 Read

with Section 151 of the Code to dismiss the E.P.

2. The Revision Petitioners are the Judgment Debtors (for short,

„JDRs‟) and the Respondent is the Decree Holder (for short, „DHR‟)

before the trial Court.

3. For better appreciation, petitioners are referred as JDRs and

respondent is referred as DHR.

4. Heard Ms. Nimmagadda Revathi, learned counsel for the

Petitioners/JDRs, and Mr. Naga Praveen Vankayalapati, learned

counsel for Respondent/DHR.

Factual Matrix:

5. The DHR filed the suit for recovery of amount against the

JDRs vide O.S. No.56 of 2006 on the file of the trial Court. The

JDRs are shown as the defendant Nos.1 and 2.

6. The DHR alleges that, the JDRs 1 & 2 are the brothers. JDR 1

has borrowed an amount of ₹1,00,000/- for his business expenses

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from the DHR on 10.06.2002 and he executed a promissory note in

favour of the DHR at Ongole (for convenience referred promissory

note A). Subsequently, he did not pay the amount, but made a part

payment of ₹1,000/-. Again JDRs 1 and 2 borrowed an amount of

₹75,000/- on 10.11.2003 for their business expenses from the DHR

and jointly executed a promissory note in favour of the DHR at

Ongole (for convenience referred as promissory note B).

Subsequently, the JDRs 1 and 2 did not pay the amount. Then the

DHR, after issuing a legal notice, filed the suit for recovery of

amount.

7. The JDRs 1 and 2 were served with summons, but did not

appear and they remained ex-parte. The trial court proceeded

further, and decided the suit, passing a decree ex-parte against the

JDRs 1 and 2.

8. Having got the decree, the DHR moved the execution

proceedings i.e., E.P. No.49 of 2008 on the file of the trial Court

against the JDRs 1 and 2 seeking the relief under Order XXI Rules

61 to 66 of the Code to attach the property of JDRs 1 and 2 and

sale and realize the amount. In the said execution proceedings,

notice was ordered to the JDRs 1 and 2. Upon receiving the notice,

the JDRs made their appearance, and have filed an Application vide

E.A. No.1185 of 2014 invoking the provision Section 47 R/w. 151 of

the Code, raising the objection as to the decree that, the decree is

un-executable, on the ground that, though Promissory Notes A & B

are independent to each other, JDR 1 & 2 are jointly made liable.

The DHR has filed counter, and contested. The learned Judge,

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C.R.P.No.3444/2016

appreciating the facts, dismissed the E.A. No.1185 of 2014.

Dissatisfied with the said dismissal of the JDRs Application, the

JDRs have preferred the Revision.

Contentions of parties:

9. JDRs in E.A. No.1185 of 2014 raised the plea that, DHR

instituted the suit basing on two promissory notes A & B; one is by

JDR 1 for ₹1,00,000/-, and another promissory note for ₹75,000/-,

by JDRs 1 and 2 jointly. Both the promissory notes are distinct to

one another and they are based upon distinct cause of actions. The

trial Court had passed a decree for total amount of ₹3,02,557/- with

interest.

10. There is no joint and several liability for the JDRs to pay

₹3,02,557/-. The framing of the Suit itself is bad for joining distinct

cause of actions. The decree therefore becomes un-executable.

Therefore, JDRs under Section 47 of the Code have a right to

question the executability, and thus, the EP has to be dismissed.

11. The DHR, refuted the said contentions with his counter,

contending that JDRs 1 and 2 are the brothers. They borrowed

amount for their business. The JDRs did not contest the matter in

the Suit. After receiving the summons, they did not make their

appearance in the suit and remained exparte. The trial Court has

passed the decree directing the JDRs 1 and 2 to pay the sum of

₹3,02,557/- together with interest. Against the decree, the JDRs did

not prefer any Appeal. After lapse of time, the JDRs are raising a

point which is not relevant in the Execution Proceedings. As there is

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C.R.P.No.3444/2016

no reference of Appeal, the decree is executable. Section 47 of the

Code is not applicable to the present case. Hence, sought to

dismiss the said Application.

Order of the trial Court:

12. The trial Court has elaborately discussed the contentions of

both parties. The trial Court, in its impugned order, framed a point

as follows:

“Whether the decree dated 9.3.207 passed in

O.S.No.56/206 is unexecutable and if so, the E.P. is

liable to be dismissed?

13. The trial Court answered the point, that suit was filed for

recovery of amount under two promissory notes; one executed by

JDR 1 alone and another by JDRs 1 and 2. The JDRs 1 and 2

having remained exparte in the Suit, the Court erred in passing the

decree making both the JDRs liable to pay the total amount on both

promissory notes. As the defendants did not contest, the Court by

mistake passed the decree in such way.

14. However, the learned Judge, held that, the Executing Court

cannot go beyond the decree. He discussed section 47 of the Code,

which says all the questions arising between the parties to the suit

in which the decree was passed shall be determined by the

Executing Court, but in this case the JDRs have a remedy under

Order IX Rule 13 of Code, challenging the exparte decree, or they

can prefer an Appeal under provisions of the Code challenging the

decree. Without taking the recourse, questioning the validity of the

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C.R.P.No.3444/2016

decree is not permissible. The decree is not null and void, the Court

has proper jurisdiction. The error is that the JDR 2 is also made

liable for the debt borrowed by the JDR 1 under promissory note A.

15. Learned Judge observed that, the Executing Court is bound to

interpret the decree according to its plain meaning. The decree

clearly shows that the JDRs 1 and 2 are liable to pay amount of the

decree. As the JDRs have an option to challenge the decree before

the appellate forum or under the provisions of the Code, the liability

without challenging the same does sustain and the Court cannot go

beyond the decree. With the said findings the learned Judge has

dismissed the said Application E.A. No.1185 of 2014.

Arguments:

16. JDRs having aggrieved by the said dismissal, have reached

this Court challenging the said impugned order, under Section 115

of the Code. The JDRs raised the grounds that the trial Court ought

to have considered the cause of action against the JDRs as different

and distinct. There cannot be any joint liability. Order II Rule 3 of the

Code would apply that takes over the jurisdiction of the Court.

17. Ms. Nimagadda Revathi, learned counsel for JDRs, argued

that, the trial Court has no jurisdiction to entertain the Suit and the

decree passed without jurisdiction becomes void and nullity. There

are some exceptions to go beyond the decree and one of such

exceptions is the present case. The trial Court has exceeded its

jurisdiction having no inherent jurisdiction. Section 47 of the Code is

applicable at the execution proceedings. As the decree itself is

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C.R.P.No.3444/2016

nullity, which goes to the root of the case of executability, the

execution proceedings do not sustain.

18. She further submitted that, the suit itself is bad. The trial court

without jurisdiction has entertained a suit with two different causes

of actions, bringing different suits under common suit and relief. The

liability to JDR 2 does not arise under promissory note A as JDR 2

did not execute. Therefore, adding two promissory notes as one

cause of action though having different cause of actions and

passing the decree against the JDRs is not correct.

19. Learned counsel relied on Section 47 of the Code, and

argued that, though they remained exparte, in the Execution

proceedings, they have a right to oppose the execution, in view of

the legal impediment, that the decree fixed the liability to the JDR 2

for promissory note A.

20. In refuting the said contentions, Sri Naga Praveen

Vankayalapati, learned counsel for the DHR, supported the

impugned order stating that the Court has jurisdiction both territorial

and pecuniary. The JDRs have executed the promissory notes and

they have not contested before the trial Court. Had they contested, if

the Court has considered their defence and passed a decree, then

they can have strength. Any grievance against the decree and its

liability, the JDRs have to challenge the decree in Appeal. Without

challenging the said decree in Appeal, denying the relief to the DHR

on the pretext of lack of jurisdiction or nullity is not correct. The

learned counsel's argument is that when the liability of JDRs exists,

the decree cannot be said nullity. The lack of jurisdiction is not the

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ground taken before the trial Court. The cause of actions is correct.

The trial Court has passed a proper decree and it shall be executed.

The decree holder is suffering for realization of his decretal amount

for the past several years. There are no merits and sought to

dismiss the Revision.

21. The learned counsel for the DHR has relied on the decisions

in Rafique Bibi (dead) by LRs v. Sayed Waliudin (dead) by LRs

and others

1

, Balavant N. Viswamitra and others v. Yadav

Sadashiv Mule (deceased by LRs) and others

2

, Prem Lala

Nahata and another v. Chandi Prasad Sikaria

3

, Sk. Firoj and

another v. Sakhya Singha Mulick and others

4

and Taria alias

Tara Chard v. Amar Singh and another

5

.

Analysis and Discussion:

22. I have heard the learned counsels for JDRs and DHR. The

suit is filed for recovery of amount, on the basis of two separate

promissory notes. The copy of the plaint shows that, the DHR has

pleaded a cause of action, referring the causes for the Promissory

Notes A and B, respectively. He calculated the court fee on each

promissory note. Promissory note A, an amount of Rs.4,326/- and

for Promissory note B, an amount of Rs.3,626/-, a total court of fee

of Rs.7,952/- is paid.

23. The relief sought for in the plaint is as follows:

1

(2004) 1 SCC 287

2

AIR 2004 SC 4377

3

(2007) 2 SCC 551

4

AIR 1991 Calcutta 161

5

AIR 1991 Punjab & Haryana

12

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“The Plaintiff therefore prays that the Hon‟ble court may be

pleased to pass a decree and Judgment in favour of the

Plaintiff and against the Defendants 1 & 2:-

a) for recovery of Rs.1,87,057/- (Rupees one lakh

eighty seven thousand and fifty seven only) from the 1

st

defendant;

b) for recovery of Rs.1,15,500/- (Rupees one lakh

fifteen thousand five hundred only) from the defendants 1

and 2;

c) for subsequent interest from the filing of the suit till

the date of realization;

d) for costs of the suit and….”

24. This framing of suit is clear that, the DHR has sought

independent relief(s) on two different promissory notes, against the

JDRs. He did not seek the relief for joint decree, making the JDRs,

liable jointly severally. However, the trial court, upon JDRs

becoming exparte, has passed the decree, which is extracted herein

below:

“i) that the defendants 1 and 2 do pay to the Plaintiff a sum of

Rs.3,02,557=00 together with subsequent interest at 12%

p.a. on the principal amount of Rs.1,75,000=00 from the date

of suit i.e., 16.02.2006 till the date of decre, and with

subsequent interest at 6% p.a., from the date of decre, till the

realization of the amount; and

ii) that the defendants do also pay to the Plaintiff a sum of

Rs.12,179=00 towards costs of the suit.”

25. The decree, thus reflects that, the Promissory notes A & B are

added together, for Rs.1,75,000/- taken as principal amount, then

granted the decree for Rs.3,02,557/- for both the promissory notes

claim amount. Decree does not say, joint and several liability. It

says, the JDRs 1 & 2 are liable for total amount (two promissory

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note amounts). It is apparent from the pleas of the parties that, JDR

1 & JDR 1 & 2, have independent liability for each promissory note.

Joint liability is for Promissory note B, for principal amount of

Rs.75,000/-, and sole liability for Promissory note A for the principle

amount of Rs.1,00,000/-. The trial court added both the promissory

notes and made total principal liability to Rs.1,75,000/- and decretal

amount is for Rs.3,02,557/-.

26. The JDRs, claim is, the joinder of cause of actions is not

correct. It is barred under Order II Rule 3 of the Code. Thus, it

lacked the jurisdiction. It is relevant to refer here Order II Rule 3 of

the Code:

“3. Joinder of causes of action -

(1) Save as otherwise provided, a plaintiff may unite in the

same suit several causes of action against the same

defendant, or the same defendants jointly; and any plaintiffs

having causes of action in which they are jointly interested

against the same defendant or the same defendants jointly

may unite such causes of action in the same suit.

(2)Where causes of action are united, the jurisdiction of the

Court as regards the suit shall depend on the amount or

value of the aggregate subject-matters at the date of

instituting the suit.”

27. The argument of the JDRs is, the cause of actions can be

joined, against the same defendant or defendants. In the present

case, the JDRs 1 and 2 are not the same defendants, there are two

promissory notes, executed by two different JDRs (Defendants).

Therefore, according to the suit relief does not sustain, then the

Court lacks jurisdiction, thus the decree passed becomes a decree

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C.R.P.No.3444/2016

without jurisdiction, a nullity. A null and void decree, becomes un-

executable. Therefore, the JDRs though remained exparte, they can

challenge the decree under Section 47 of the Code.

28. I have gone through the contentions. Before answering this,

the status of the JDRs in the suit is, they remained exparte; they did

not raise their defence under Order II Rule 3 of the Code. This is

relevant, that, the JDRs have not raised this defence of cause of

actions or joinder of parties in the suit. The reason is the Code

prescribes a scope, in case any such anomaly under Order II Rule 3

of the Code, the aggrieved party can invoke Order II Rule 7. It reads

as follows:

“7. Objections as to misjoinder -

All objections on the ground of misjoinder of causes of action shall

be taken at the earliest possible opportunity and, in all cases

where issues are settled, at or before such settlement unless the

ground of objection has subsequently arisen, and any such

objection to so taken shall be deemed to have been waived.”

29. This provision gave the protection to the opposite party to

raise its objection at the earliest point of time in case of any such

mis-joinder of parties or cause of actions, that too, before settlement

of issues. If it is not taken, then it is deemed that, it is waived.

30. In the present case, the JDRs did not make their appearance

before the trial court in the suit. They did not avail the opportunity to

raise the defence of mis-joinder of parties or cause of action at the

earliest point of time, they allowed the Court to pass the decree

without their defence. The earliest point of time, means, in the suit,

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before settlement of issues, but not after the decree, when they

make their appearance first. Earliest point of time of appearance is

referred to the proceedings in the suit, but not in execution

proceedings. Thus, by provision, since the JDRs have not raised

their earliest defence of misjoinder of causes of action, before

settlement of issues, they have waived their right, and

consequently, they cannot raise this defence in subsequent ancillary

proceedings.

31. Thus, the contention of the JDRs, that, it effects Order II Rule

3 of the Code, thereby, the Court has no jurisdiction, consequently

decree passed without jurisdiction is nullity, do not sustain. The

JDRs are precluded to make such defence, that, decree is nullity

under Order II Rule 3 of the Code in view of the non compliance

under Order II Rule 7 of the Code. Consequently, the decree cannot

be termed as void, or nullity or without jurisdiction.

32. The JDRs, have taken the stand of Order II Rule 3 of the

Code in execution proceedings, invoking Section 47 of the Code.

Section 47 of the Code reads as follows:

“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.

[* * *]

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(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.

[Explanation I - 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.] Limit of time for execution”

33. The provision per se, contemplates that the executing court

can determine the questions placed before it, during the execution

proceedings, relating to execution, discharge or satisfaction of

the decree only but not for any other reasons.

34. The provision, as extracted above, would show that only on

specific grounds, the executing court can consider the questions

that are to be determined such as questions relating to their

execution, discharge or satisfaction of the decree. In this case, the

execution is questioned on the ground that the decree is nullity.

35. The legal position in this regard as to which amounts to nullity

is laid on Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman

and others

6

, wherein the Hon‟ble Apex Court held as follows:

6

1970 (1) SCC 670

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C.R.P.No.3444/2016

“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. In Jnanendra Mohan

Bhaduri & Anr. v. Rabindra Nath Chakravarti (2) the Judicial

Committee held that where a decree was passed upon an

award made under the provisions of the Indian Arbitration

Act, 1899, an objection in the course of the execution

proceeding that the decree was made without jurisdiction,

since under the Indian Arbitration Act, 1899, there is no

provision for making a decree upon an award, was

competent. That was a case in which the decree was on the

face of the record without jurisdiction.

36. The principle laid is a decree becomes nullity only when legal

representatives are not brought on record, and a decree is passed

by a Court which has no inherent jurisdiction. Then only the decree

validity can be challenged.

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C.R.P.No.3444/2016

37. In Brakewel Automotive Components (India) Private

Limited v. P.R. Selvam Alagappan

7

, the Hon‟ble Apex Court has

reiterated the above principles with Section 47 of the Code

mandates, determination by an executing Court, questions arising to

the parties or their representatives relating to the execution,

discharge or satisfaction of the decree and does not contemplate

any adjudication beyond the same and 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.

38. Further held that, the exercise of power under Section 47 of

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 in-

executable after its passing. None of the above eventualities as

recognized in law for rendering a decree in-executable 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.

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 therein. It is only in the limited cases where the decree

is by a Court lacking inherent jurisdiction or is a nullity with the same

is rendered nonest and thus is un-executable.

7

(2017) 5 SCC 371

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39. In Odisha State Financial Corporation v. Vigyan Chemical

Industries and others

8

, the Hon‟ble Apex Court held as follows:

“15. ................................................. The scope of

interference at the stage of execution is limited to certain

exceptions. As per Section 47, the Executing Court is

empowered to examine the questions relating to execution,

discharge, or satisfaction of the decree. It cannot go beyond

the decree; but at the same time, when a plea is raised that

the decree is a nullity and hence, unenforceable, the

executing court is bound to examine and decide such an

application on its merits.

16. It is a settled position of law that a court executing a

decree cannot go behind the decree passed between the

parties or their representatives, unless the decree is a nullity.

The court must execute the decree according to its tenor,

and cannot entertain objections on the ground that the

decree is erroneous in law or on facts. Until it is set aside by

an appropriate proceeding in appeal or revision, a decree,

even if erroneous, remains binding on the parties. A decree

may, however, be challenged in execution proceedings, if it

is a nullity – for instance, if it is passed without bringing on

record the legal representative of a person who was dead at

the time the decree was passed, or where the cause of

action was not maintainable, or if it was passed against a

ruling prince without a certificate. An objection in that behalf

may be raised in the execution proceedings. Similarly, when

the decree is made by a court that has no inherent

jurisdiction to pass it, an objection as to its validity may be

raised in an execution proceeding if the objection appears on

the face of the record.”

40. The laid down consideration under Section 47 of the Code are

thus a decree, is passed without inherent jurisdiction, obtained by

fraud and against the wrong person, it becomes a nullity.

8

Civil Appeal No.10047/2025 (SLP (C) No.1842/2023), Dt.05.08.2025

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41. Thus, the law laid down by the Hon‟ble Apex Court is clear

that an objection regarding maintainability, at the stage of execution,

any objections can be raised as to the maintainability of the Suit. If

those objections goes to the root of the jurisdiction of the Court, the

Court exercising the jurisdiction without lacking jurisdiction and from

the face of the record do not require adjudication for trial. The

principle laid down, would show that the objections that goes into

merits of the case which are triable, and the decided case by the

Court is without competency of jurisdiction, then nullity of the decree

would arise and this can be questioned under Section 47 of the

Code.

42. DHR further relied on the following decisions in Kiran Singh

and others v. Chaman Paswan and others

9

and Pushpa

Sahakari Avas Samiti Limited v. Gangotri Sahakari Avas Samiti

Limited and others

10

.

43. Argument of learned counsel with support of ruling in Kiran

Singh and others (9

th

supra) is that a decree passed by a Court

without jurisdiction is a nullity and that its invalidity could be set up

wherever and whenever it is sought to be enforced, even at the

stage of execution, and even in collateral proceedings. A defect of

jurisdiction, whether it is pecuniary or territorial or whether it is in

respect to the subject matter of the action, strikes apart from the

authority of the Court to pass any decree and such a defect cannot

be cured even by consent. Learned counsel submits that evaluation

9

AIR 1954 SC 340(1)

10

(2012) 4 SC 751

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of the suit, overvaluation of the suit or under violation of the Suit

needs to be treated as it would be evading the jurisdiction.

44. In principle, the above ruling deals with the provisions of

jurisdiction of the Court; Sections 9 and 21 without jurisdiction,

Section 11 and Suits Valuation Act. The nullity of the decree is

discussed above. The above ruling for the facts and circumstances

do not apply.

45. DHR relied on a decision of the Hon‟ble Apex Court in

Pushpa Sahakari Avas Samiti Limited (10

th

supra). The above

ruling deals with the objections filed under Section 47 of the Code

but the facts do show the objection was the DHR moved the

executing Court for execution of the decree prior to the expiry of 6

months period i.e., premature execution. In those circumstances,

Hon‟ble Apex Court applied Order XXI of the Code stating that there

is no such provision relating to execution of premature execution

and the Court can reject it. The above ruling is distinguishable to the

present facts of the case.

46. DHR further relied on a decision of the Hon‟ble Apex Court in

Balavant N. Viswamitra and others (2

nd

supra). His reliance in the

above case is that the defendants were aware of the proceedings;

they engaged a counsel; thereafter, they withdrew their appearance.

The decree having been passed by the competent Court having

jurisdiction thereby does not become nullity. Para Nos.9 and 10

therein are extracted hereunder:

“9. The main question which arises for our consideration

is whether the decree passed by the trial court can be said to

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be 'null and 'void'. In our opinion, the law on the point is well

settled. The distinction between a decree which is void and a

decree which is wrong, incorrect, irregular or not in

accordance with law cannot be overlooked or ignored. Where

a court lacks inherent jurisdiction in passing a decree or

making an order, a decree or order passed by such court

would be without jurisdiction non est and void ab initio. A

defect of jurisdiction of the court goes to the root of the

matter and strikes at the very authority of the court to pass a

decree or make an order. Such defect has always been

treated as basic and fundamental and a decree or order

passed by a court or an authority having no jurisdiction is

nullity. Validity of such decree or order can be challenged at

any stage, even in execution or collateral proceedings.

10. Before five decades, in Kiran Singh & Ors. v. Chaman

Paswan & Ors., [1955] l SCR 117] this Court declared;

"It is a fundamental principle well established

that a decree passed by a court without

jurisdiction is a nullity and that its invalidity

could be set up wherever and whenever it is

sought to be enforced or relied upon, even at

the stage of execution and even in collateral

proceedings. A defect of jurisdiction......strikes

at the very authority of the Court to pass any

decree and such a defect cannot be cured even

by consent of parties."

47. The Hon‟ble Apex Court, in the above ruling, relied on

Vasudev Dhanjibhai Modi (6

th

supra), Seth Hiralal Patni v. Sri

Kali Nath [(1962) 2 SCR 747]. In the above ruling, the Hon‟ble Apex

Court held that a distinction exists between a decree passed by a

Court having no jurisdiction and consequently being a nullity and not

executable and a decree of the Court which is merely illegal or not

passed in accordance with the procedure laid down by law. A

decree suffering from illegality or irregularity of the procedure cannot

be termed as in-executable by the Executing Court. The remedy of

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a person aggrieved by such a decree is to have it set aside in a duly

constituted legal proceedings or by a superior Court failing which he

must obey the command of the decree. A decree passed by a Court

of competent jurisdiction cannot be denuded of its efficacy by any

collateral attack or in incidental proceedings.

48. From the above decision, it is ample clear that all irregular or

wrong decrees or orders are not necessarily null and void. An

erroneous or illegal decision which is not void cannot be objected in

execution or collateral proceedings.

49. The above ruling applies to the present facts of the case. It is

not the case that the Court has no competent jurisdiction, the

objection of the JDR is joinder of cause of actions which is not laid

under Order II Rule 3 of the Code. The answer is that Order II Rule

3 is a procedural aspect and such defect is curable, when on first

instance taken by the opposite party the Code has given an

opportunity to the opposite party to raise their objection at the

earliest point of time to correct the defect or irregularity under Order

II Rule 7 of the Code. That was not done by JDRs. Their right was

waived. Therefore, Order II Rule 3 of the Code does not become a

void defect, in making the decree a nullity. Therefore, the contention

that the Court has no jurisdiction, without jurisdiction has passed the

decree is not correct. It does not become null and void.

50. Learned counsel for the DHR relied on Prem Lala Nahata (3

rd

supra). The above ruling deals with misjoinder of parties or causes

of action. It was held in that case that the objection of misjoinder of

parties or causes of action is only a procedural objection. It is open

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to the Court to proceed with Suit notwithstanding such defects and if

the Suit results in a decision, the same cannot be set-aside in

Appeal merely on that ground, in view of Section 99 of the Code,

unless the conditions of Section 99 are satisfied.

51. The CPC considers objections regarding the framing of the

Suit or joinder of parties only as procedural objection. This is on the

same principle as of Section 21 of the Code which shows that even

an objection to the territorial jurisdiction of the Court in which the

Suit is instituted could not be raised successfully for the first time in

an Appeal against decree unless the appellant is also able to show

consequent failure of justice.

52. The above ruling is supportive to the present facts of the

case. As the objection of the JDR or misjoinder of causes of action

is procedural irregularity which can be cured but it cannot be

questioned under execution as a nullity. The process left is to

challenge it in appellate forum in irregularity or illegality in the

decree.

53. The DHR relied on Rafique Bibi (1

st

supra), wherein the

Hon‟ble Apex Court dealt with void, null and void decree and held

as follows:

What is “void” has to be clearly understood. A decree can be

said to be without jurisdiction, and hence a nullity, if the court

passing the decree has usurped a jurisdiction which it did not

have; a mere wrong exercise of jurisdiction does not result in

a nullity. A distinction exists between a decree passed by a

court having no jurisdiction and consequently being a nullity

and not executable and a decree of the court which is merely

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illegal or not passed in accordance with the procedure laid

down by law.”

54. The above rule also refers the nullity or voidability of the

decree arises, if the Court passed a decree without jurisdiction.

Factual aspects of this case do not refer that the Court has no

jurisdiction.

55. The JDRs relied on the decision in Kiran Singh and others

(9

th

supra), wherein the Hon‟ble Apex Court held that a decree

becomes a nullity if the decree passed by a court has no

jurisdiction.

56. There is no dispute that, the trial court has territorial and

pecuniary jurisdiction, even though the causes of actions are joined.

The trial court with the jurisdiction has passed the decree. The error

of adding cause of actions, is a curable one under the provision

Order II Rule 7 of the Code. If that, curability is not invoked by the

contesting party at the earliest point of time, they waives their right.

The reason, is, it‟s an error, but not without jurisdiction, much less

inherent lack of jurisdiction. Therefore, with the above factual

aspects, legal position, the JDRs claim of decree as nullity is not

tenable.

57. In Union of India v. Ashok Kumar Rasiklal and

Company

11

, a Division Bench of the Orissa High Court held as

follows:

11

AIR 1987 Orissa 264

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C.R.P.No.3444/2016

“There is no merit in this part of the argument as well. No objection

as to the misjoinder of the causes of action was taken in the

written statement. Rule 7 of Order 2 of the Code of Civil Procedure

specifically provides that all objections on the ground of misjoinder

of causes of action shall be taken at the earliest possible

opportunity and, in all cases where issues at settled, at or before

such settlement, unless the ground of objection has subsequently

arisen, and any such objection not so taken shall be deemed to

have been waived.”

58. It applies to the present case. The JDRs have not taken this

stand at the earliest point, now they cannot invoke.

59. It is now relevant to refer other aspects of the JDRs defences.

It is not the case of the JDRs that they are not liable to pay the

amount. It is their contention that the decree passed giving joint

liability is not correct. They are not challenging the liability, but they

are challenging the decree that joint liability is given. Any such

challenge going to the root of liability is not the scope under Section

47 of the Code. Any question as to liability, shall be determined in

the suit. Once, liability is fixed under decree, unless it is challenged

or varied, it has to be executed. The suit reliefs are distinct for JDR

1, and JDRs 1 and 2 for the respective amounts. The total amount

is not in dispute. Even otherwise, assuming for a moment, that a

joint decree is passed, the individual liability of JDR 1 against the

promissory note A and the liability of JDRs 1 and 2 against the

promissory note B, independently, as prayed for does exist. Even

under execution, the court upon attachment of the property, can

restrict the attachment of sale to the extent of liability independently,

by invoking the provisions under Order XXI of the Code, such as

Rules 17, 64 & 66 of Order XXI. When the decree can be executed

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independently limiting the liability, then, it cannot be said, per se as

un-executable.

60. The passing of decree making liability may be an error, but

not an illegality. The learned counsel for JDRs, has relied on the

statement of the learned Judge, in his impugned order that,

“passing the joint decree is a mistake of the Court”. The learned

counsel has highlighted this, that, the court itself admitted.

61. The learned Judge did not go into the provisions of Order II

Rules 3 and 7 of the Code. The learned Judge has gone on the

premise that, a mistake has happened. The learned judge ought not

to have noted so, in view of the existing legal position. By that, the

law does not change. Even otherwise, though learned Judge stated

so, his reasoning is, court cannot go beyond decree and dismissed

the petition. His conclusion is right, though the reasons to the

conclusion are not relevant. Thus, the trial court has rightly

dismissed the application.

62. The statement of the learned judge, itself does not become a

ground for the JDRs to avoid their liability, when the finding of

liability is not challenged. The suit is framed for two distinct relief(s).

The decree is for the total amount, liability of JDR 1 and JDRs 1 and

2. That liability under the decree is not null and void. When the

JDRs did not raise their defence, at the earliest point of time, they

now cannot claim after the decree.

63. The JDRs stand is not that, illegality arose without legal

liability, but the court has made them liable, which in turn has led to

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serious prejudice to the JDRs, without having a jurisdiction. If these

serious issues are not there, the waiving of right to challenge Order

II Rule 3 of the Code, now the JDRs under Section 47 of the Code

are permitted to cover their legal impedement. Attempts to take

advantage from their error of taking earliest defence, under the garb

of Section 47 of the Code, they cannot be permitted to agitate it.

JDrs which they failed to do directly cannot be permitted to do

indirectly.

64. Thus, the law laid down, is a decree becomes un-executable

on becoming nullity, only when a court has passed a decree without

jurisdiction, or having not placed the legal representatives or

obtained by fraud or passed against wrong person. In this case, D-2

is not a wrong person to promissory note B. His liability is there for

it. His identity for Promissory note A is an error, but not liability. It

does not laid that Order II Rule 3 defect makes the decree nullity,

especially when that defence is waived and the opposite party

allowed the court to proceed with passing of decree.

65. The decree has to be honored unless it is reversed by

appellate forum. The JDRs are liable under the decree. Without

questioning the liability of the JDRs before the Court, which has

territorial and pecuniary jurisdiction, especially when the suit is filed

for distinct reliefs, that the JDR 1 and JDRs 1 and 2 are separately

liable for each promissory note and the JDRs have waived the

defence cannot question the decree under Section 47 of the Code.

The decree sustains, cannot be said as illegal.

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Conclusion:

66. With the foregoing reasons, with the established legal position

under the decisions, since Order II Rule 7 of the Code is applicable,

and that there is no illegality of lack of jurisdiction to the trial court,

the impugned order though not proper on reasons for dismissal, but

the conclusion of dismissal is right, the impugned order does not

require any consideration to interfere. Consequently, the Revision

deserves to be dismissed.

67. It is made clear that, the observations in this order are

concerned only to the purpose of this Revision and in the present

circumstances, but not expressing the merits of the case, which

shall be dealt, independently by the respective Courts.

Result:

68. In the result, the Civil Revision Petition is hereby dismissed.

No order as to costs.

As a sequel, miscellaneous applications, if any, shall stand

closed. Interim order, granted earlier, if any, shall stand vacated.

___________________________________________

JUSTICE PURUSHOTTAM KUMAR CHINTALAPUDI

Date:15.10.2026

DSH

Whether the order is:

Speaking Reasoned √

Reportable √ Non-Reportable