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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4313-4314 OF 2017

(ARISING OUT OF S.L.P (C) NOS.20745-20746 OF 2016 )

M/S. BRAKEWEL AUTOMOTIVE COMPONENTS

(INDIA) PVT. LTD. .…APPELLANT

VERSUS

P.R. SELVAM ALAGAPPAN ....RESPONDENT

J U D G M E N T

AMITAVA ROY,J.

Leave granted.

2. The subject matter of impeachment is the order dated

3.6.2016 rendered in CRP (NPD) 1499 of 2016 and CMP No. 8225 of

2016 by the High Court of Judicature at Madras, thereby rejecting

the prayer of the appellant/plaintiff/decree-holder (for short,

hereinafter to be referred to as “the appellant”) to eschew evidence

of the respondent/defendant/judgment-debtor (for short,

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hereinafter to be referred to as “the respondent”) in a proceeding

under Section 47 of the Code of Civil Procedure, 1908 (as amended)

(hereinafter to be referred to as “CPC/Code”), as well as to dismiss

such application as not maintainable. By the order impugned, the

High Court has affirmed the determination made to the same effect

by the Executing Court.

3. We have heard Mr. J.S. Bakshi, learned counsel for the

appellant and Mr. M.P. Parthiban, learned counsel for the

respondent.

4. The genesis of the present lis is traceable to Civil Suit (OS)

No. 1690 of 2010 instituted before the High Court of Delhi at New

Delhi by the appellant against the respondent arrayed as the

proprietor of M/s. Kargaappa Auto Products and M/s Paans Auto

Products for recovery of Rs. 20,94,953/- arising from business

transactions between the parties. While the appellant described

itself to be a company registered under the Companies Act, 1956

and engaged in the business of manufacture and sale of auto

components/parts, the respondent was introduced as the

proprietor of the afore-named proprietorship firms. According to the

appellant, the respondent approached it in the month of

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November, 2002 for a business deal and on the basis of the

bargain entered into, it supplied auto components and parts to the

respondent, as per the specifications mentioned and raised bills in

connection therewith.

5. As per the books of account maintained in the regular course

of business, at the relevant time i.e. 15.10.2007, Rs. 8,01,708/-

was due and outstanding against the respondent in the accounts of

M/s. Kargaappa Auto Products and Rs. 4,93,952/- as on 6.6.2008,

in the account of M/s. Paans Auto Products, thus totalling Rs.

12,95,660/-. As this amount was not paid inspite of repeated

demands, and the ultimate notice dated 28.12.2009, addressed by

the appellant to the respondent, the suit was filed for realisation of

the aforementioned amount together with interest @ 24% p.a. for an

aggregate sum of Rs. 20, 94,953/-.

6. Though on the receipt of the summons in the suit, the

respondent arranged for his representation, he eventually failed to

submit his written statement and accordingly, his defence was

struck off vide order dated 20.10.2011, in view of his persistent

default to that effect. Subsequent thereto, the appellant filed the

affidavit of one of its directors in endorsement of its pleaded case,

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who proved, amongst others, the copies of various invoices

authenticating the supply of goods to the respondent and also the

statement of accounts pertaining thereto. This witness too was not

cross-examined on behalf of the respondent, though opportunity

was granted and eventually the Trial Court, on a consideration of

materials on record, decreed the suit for Rs. 18,95,077/- by

allowing the interest @ 18% p.a. in lieu of 24%, as claimed.

7. As the records would reveal, a defective appeal was filed

on behalf of the respondent thereafter only to be withdrawn in due

course. The appellant launched the execution and the application

in connection thereto was registered as E.P. No. 11787 of 2014 to

execute the decree as aforementioned. It was thereafter that an

application for review was filed by the respondent before the High

Court seeking to recall the judgment and order dated 16.12.2011. It

was pleaded by the respondent that the suit was not maintainable

on account of non-joinder/mis-joinder of proper and necessary

parties. Though he had admitted that he was the proprietor of

Paans Auto products, he asserted that he was not so of M/s.

Kargaappa Auto Products and that instead his wife Mrs. A. Kamalla

being so was the proper and necessary party and that in view of

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this defect, the suit was liable to be dismissed. He also pointed out

that the name of this firm is M/s. Karpaga Auto Products and not

M/s. Kargaappa Auto Products, as recited in the plaint. The

respondent alleged fraud as well and contended that the appellant

was guilty of suppression of material facts of rejection of its goods.

Further, he also alleged collusion and connivance between his

counsel and the appellant for which the former deliberately

abstained from taking necessary steps to ensure his effective

representation in the suit, thus resulting in the ex-parte decree.

8. He pleaded that on receiving the summons in the suit,

necessary instructions were conveyed to his counsel at Delhi to

appropriately contest the proceeding, but the latter refrained

from either filing the written statement or from taking necessary

steps resulting in his default for which ultimately, the suit was

decreed. According to him, though he was in touch with his

counsel at Delhi through his counterpart at Chennai, he was being

given the impression that there was no progress in the suit and that

he would be duly informed about any substantial development

therein whenever the same would occur. The respondent

contended that it was in February/March, 2014, when he and his

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local counsel grew suspicious of the evasive replies given by his

counsel at Delhi, that the records of the suit were consulted, which

revealed that his defence had been struck off on 20.10.2011 and the

suit had been decreed on 16.12.2011. The records of the suit also

divulged that though an opportunity to him for cross-examination of

the witnesses by appellant had been afforded, it was not availed of

due to the sheer dereliction of the professional duties of his

counsel.

9. Noticeably, the respondent in his review application

disclosed that his said counsel however did prefer an appeal

against the ex-parte decree, which eventually was returned in view

of the attendant defects. The appeal was however not re-filed and

that in the meanwhile, a complaint had been lodged against the

counsel with the Bar Council of Tamil Nadu at Channai, was

mentioned as well.

10. It is worthwhile to note that no interim order was

passed on this review application, which eventually was dismissed

on 15.4.2015 on account of unexplained delay of three years.

11. Meanwhile, however the respondent filed his

counter-affidavit in the execution proceedings and also followed it

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up with an application under Section 47 of CPC to resist the

execution of the decree. Suffice it would be to state that the

demurrals in these pleadings are in substance a replication of

those narrated in the review application and, therefore are not

being re-traversed.

12. In refutation, the appellant did file a common

counter-affidavit asserting that the respondent had placed orders

for automobile components, which were accordingly dispatched and

as on the date of the institution of the suit, the payments in

connection therewith were outstanding, a suit was filed to recover

the same and eventually, it was decreed on 16.12.2011 for a sum of

Rs. 18,95,077/- along with pendente lite and future interest @ 18%

p.a. Apart from highlighting that the respondent had after the

receipt of the summons/notices in the suit, continuously abstained

himself from contesting the same by filing his written statement or

taking further initiatives and that, therefore the decree passed was

valid in law, the appellant maintained that the suit had been filed

against the respondent, as he represented both the firms and had

participated in the transactions in that capacity for which either the

mistake in the name of M/s. Kargaappa Auto Products instead of

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M/s Karpaga Auto Products or non-impleadment of his wife as the

sole proprietress thereof was wholly inconsequential qua the aspect

of executability of the decree. The allegation of suppression of any

material fact, as alleged was denied. The accusation of collusion

between the learned counsel for the respondent and the appellant

was stoutly denied as well. It was pointed out that the fact of

filing of appeal preferred by the same counsel against the decree

belied the allegation of dereliction of duty as unfounded.

Underlining the inexplicable delay and inaction of three years on the

part of the respondent in filing the review petition, it was contended

that the resistance to the executing proceedings was only with the

objective of protracting the proceedings to his advantage on flimsy

and frivolous grounds.

13. The respondent next filed an affidavit on the same lines

as narrated in his counter and the application under Section 47

CPC and sought to supplement the same by producing documents

to that effect by way of oral and documentary testimony of the

pleaded facts. The appellant in its rejoinder did object to this

initiative on the part of the respondent as impermissible, being

beyond the purview of Section 47 CPC and prayed for obliteration of

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such evidence. The appellant pleaded that after the

counter-affidavit had been filed by the respondent in the execution

proceedings, arguments on behalf of the decree-holder were heard

and though the proceedings were deferred for the arguments on

behalf of the respondent, an application by him under Section 47

CPC was filed, the maintainability whereof was questioned by the

appellant and that it was at that belated stage that the respondent

sought to introduce the documentary evidence.

14. The Executing Court however by its order dated

8.2.2016, dismissed the objection of the appellant by taking note

principally of the fact that the respondent was not the proprietor of

Karpaga Auto Products and that it was necessary to examine as to

how he was related to the said proprietorship firm, a question to

be decided in the proceedings under Section 47 CPC.

15. By the impugned order, the High Court has affirmed

this determination of the Executing Court by observing that though

the issue of maintainability of the application under Section 47

CPC had been raised by the appellant, it was within the right of the

respondent to lead evidence, both oral and documentary pertaining

to all questions arising between the parties to the suit. It was of

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the view that the question of maintainability of the application

under Section 47 CPC ought to be decided along with the objections

raised with regard to the executability of the decree.

16. Learned counsel for the appellant, in the above

backdrop, has argued that the impugned order is clearly

unsustainable in law and on facts having regard to the established

contours of scrutiny under Section 47 CPC and is thus

indefensible. Not only the grounds urged in the counter-affidavit

to the execution petition and the application under Section 47 CPC

do have any factual foundation and are thus non-existent, these

are liable to be rejected in limini and do not warrant any

verification thereof. Not only are these objections frivolous on the

face of record, these have been resorted to only for protracting the

execution proceedings. He urged that the impugned order has the

effect of going behind and reopening the decree, which is

impermissible in law. According to him, neither the decree suffers

from any jurisdictional error nor is a nullity and is thus executable

in law.

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17. In reply, the learned counsel for the respondent has

insisted that in the teeth of incorrect name of one of the firms and

non-representation thereof by its rightful proprietor, the decree

which is composite in nature, has been rendered inexecutable. He

further argued that as the decree is an yield of fraud and collusion

between the learned counsel for the respondent and the appellant,

it is non est in law and thus the impugned order which only permits

an inquiry in these aspects, is well within the purview of Section 47

CPC and therefor no interference therewith is called for.

18. The materials on record and the arguments based

thereon have received our due consideration. To recapitulate, the

plaint discloses that the respondent had represented before the

appellant to be authorised to act on behalf of both the firms and in

that capacity had participated in the transactions that followed. In

that perspective, even assuming that the name of one of the firms

was wrongly mentioned and that in fact, it is the wife of the

respondent, who is the proprietress thereof, with whom there is no

conflict of interest, these in our comprehension per se, would not

render the decree void or inexecutable. Such errors, even if exist,

would not infest the decree with any jurisdictional infirmity or

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reduce it to a nullity. Noticeably, there is no dispute with regard to

the identity of the firms involved and their representation by the

respondent in the suit transactions. The allegation of fraud and

collusion between the learned counsel for the respondent and the

appellant is visibly self-serving, omnibus, speculative and

unauthentic and cannot therefore, after so many years, ipso facto

render the decree invalid on account thereof. Visibly, the

respondent had been the center figure in all the transactions

between the parties on behalf of the firms, as stand proved in the

suit and the resistance to the execution of the decree is neither on

behalf of M/s. Kargaappa Auto Products/M/s. Karpaga Auto

Products nor its proprietress, his wife contending that the decree is

neither binding on the firm nor on her. For all practical purposes,

the said firm is still being represented by the respondent in the

subsisting proceedings. The sequence of events disclose that the

suit had been instituted in the year 2010 and was decreed on

16.10.2011. The persistent default on the part of the respondent

has been adverted to hereinabove. Though a defective appeal had

been filed on his behalf in the year 2012, it was withdrawn and was

not re-filed by removing the defects. The Execution Petition though

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lodged in the year 2014 has not seen the fruit of the decree as on

date. The Review Petition filed by the respondent has also been

dismissed. Significantly, in all the proceedings initiated by the

respondent to stall the execution of the decree, the same pleas

have been reiterated.

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 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

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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

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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

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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

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would proceed with the execution proceedings and take it to the

logical end with utmost expedition. No costs.

............................................J.

(ARUN MISHRA)

….........................................J.

(AMITAVA ROY)

NEW DELHI;

MARCH 21, 2017.