Andhra HC (Pre-Telangana)
K.L.N. Raju vs Pawan And Company And Ors. on 15 November, 2002
Equivalent citations: 2003(1)ALD241
ORDER V. Eswaraiah, J.
1. This Civil Revision Petition is filed against the order dated 20-6-2002 in E.P. No. 35/2000 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad. The petitioner herein is judgment debtor No. 3, The 1st respondent is the decree holder. Respondents 2 and 3 herein are also the judgment debtor Nos. 1 and 2. By the said impugned order, the trial Court directed to issue attachment of the schedule of movable properties of the petitioner herein against which this Civil Revision Petition is filed.
2. The 1st respondent herein filed suit O.S. No. 450/1998 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad for recovery of certain amounts. The petitioner herein is the 3rd defendant and respondents 2 and 3 herein are defendants 1 and 2. All of them were set ex parte in the suit on 28-10-1999 and the suit was decreed by the judgment and decree dated 16-6-2000 in O.S. No. 450/1998 by the Court below. A reading of the said judgment discloses that defendants 1 to 3 remained ex parte and the suit against the 4th defendant was dismissed as not pressed and the plaintiff examined PW-1 (B.N. Das) and marked Exs.A-1 to A-33. All the documents have clearly established about the amount due to the plaintiff by the defendant. Therefore, the plaintiff is entitled to recover the suit amount as prayed for. Accordingly, the suit is decreed with costs with subsequent interest @ 24% p.a. from the date of the suit till its realisation since it is a business transaction on the principal amount of Rs. 5,41,848A.
3. The 1st respondent/decree holder filed E.P. No. 35/2000 on 4-9-2000 for recovery of the decretal amount by attaching the properties of the petitioner herein/ judgment-debtor No. 3 by selling the same towards decretal amount. The petitioner herein received the notice in the said E.P. on 14-11-2000 and filed petition in I.A. No. 100/2000 on 17-11-2000 to condone the delay of 154 days in filing a petition to set aside ex parte decree dated 16-6-2000. The petitioner also filed a counter on 2-11-2000 in E.P. No. 35/2000 raising certain objections with regard to the merits of the suit. The said objections were overruled by order dated 31-1-2001 stating that the objections are untenable and the contentions raised in the counter relate to the merits of the suit and accordingly ordered to attach by 1-3-2001. Questioning the said order dated 31-1-2001, the petitioner filed C.R.P. No. 454/2003 and the learned single Judge of this Court disposed of the said Civil Revision Petition on 12-4-2002 while setting aside the order dated 31-1-2001 in E.P. No. 35/2000 directed the Court below to consider all the objections raised by the revision petitioner in the counter and pass appropriate orders in E.P. No. 35/2000 after hearing both the parties. Accordingly, the Court below considered the objections of the petitioner herein and after hearing both the parties, passed the impugned order dated 20-6-2002 holding that the petition filed by the petitioner to set aside the ex parte decree was dismissed for default and he has filed another petition for restoration of the same which was also dismissed for default. It is further stated that the steps sought to be taken by the petitioner were not materialised till today and the decree remains good and executable. The petitioner also has not filed any application before the Court for staying the execution of the decree. The petitioner herein has neither filed any petition nor obtained any stay orders from the original Court or from the appellate Court staying the execution of the decree. As no such application is filed for granting stay of execution proceedings till the proceedings initiated by the petitioner are finally disposed of, the decree under execution remains hold good and effective for execution and, therefore, the executing Court cannot go beyond the scope of the decree and it cannot stop execution proceedings on the basis of the contention of the petitioner herein. The petitioner herein contended before the Court below that he has nothing to do with the Activities of respondents 1 and 2 therein i.e., judgment debtors 1 and 2 and he is not liable to pay the decretal amount. He is neither a partner nor a director of judgment debtor No. 1 and he was only the purchase officer of D-l and, therefore, the decree holder is not entitled for the recovery of the said amount. The Court below considered the said contentions and held that the said Court being an Executing Court cannot go beyond the decree nor it can question the legality or correctness of the decree. As far as controversy raised by the revision petitioner herein is concerned, cannot be considered, as the said contentions cannot come within the purview under Section 47 of Code of Civil Procedure enabling the said Court to resolve the controversy. It-is open for the revision petitioner herein to canvass his case in such a manner in accordance with law and if his contentions are valid and true it is for him to recover the said amount from judgment debtors 1 and 2. But the same cannot be decided under Section 47 C.P.C. Accordingly, the objections of the revision petitioner herein have been considered and held that they are not tenable and proceeded with by order of the attachment of the schedule movable properties of the petitioner.
4. The learned Counsel appearing for the revision petitioner submits that the Court below erroneously passed ex parte decree against him and he has filed an application to set aside ex parte decree along with the application to condone the delay but the same was dismissed erroneously and another application was also filed. It is further submitted that under Section 47 of C.P.C, the Court below shall decide the objections of the petitioner with regard to the maintainability of the execution proceedings against him. The petitioner has not filed any application to decide the said issue under Section 47 of C.P.C. read with any relevant rules but he has simply filed a counter objecting for execution of the decree on the ground that the he has filed an application to set aside ex parte decree. Admittedly, as observed by the Court below, no application is pending to set aside the ex parte decree. It is stated that I.A. No. 100/2000 filed on 17-11-2000 to condone the delay of 154 days in filing the petition to set aside ex parte decree dated 16-6-2000 was allowed on 3-2-2001 and an application filed to set aside ex parte decree was numbered as LA. 105/2001. The said I.A. No. 105/2001 filed for setting aside ex parte decree was dismissed on 25-4-2001 as batta was not paid. On 11-3-2002, the petitioner herein filed LA. No. 978/2002 under Section 5 of Indian Limitation Act to condone the delay of 291 days in filing petition to restore LA. No. 105/2001. LA. No. 978/2002 filed under Section 5 of Limitation Act was also dismissed for not depositing the batta on 5-6-2002. It appears that another LA. No. 1249/2002 was filed on 21-6-2002 to restore LA. No. 978/2002. Thus, it is clear as observed by the Court below that no application is pending for setting aside the ex parte decree. As observed by the Court below, the petitioner has not filed any application to stay the execution proceedings and the Executing Court cannot go beyond the scope of the judgment and decree and the Executing Court has no power to amend, modify or substitute a decree. It is settled law that what has been decided and questioned and also which ought to have been raised has not been raised would also be questioned cannot be gone into by the Executing Court. The question or a fact which is prior to the decree, if it in any way modifies, amends, substitutes a decree, the Executing Court cannot go into the merits. However, the petitioner has not filed any application to decide the said question under Section 47 read with relevant rules of CPC. Even otherwise, it is not the case of the petitioner that the suit is barred by time and the decree is inexecutable or it is a void decree. The questions raised in the counter are only questions, which ought to have been raised in the suit, and the suit was decreed ex parte, which has become final and, therefore, the Executing Court cannot go beyond the scope of the decree.
5. The learned Counsel appearing for the respondents relying on the judgment of the Apex Court in Sunder Dass v. Ram Prakash, , submits that the Executing Court cannot go beyond the decree nor it can question its legality or correctness. It is stated that it cannot be said that the Court below has no jurisdiction to entertain the said suit, which passed the decree against the petitioner herein. There is no lack of inherent jurisdiction, which goes to the root of the competence of the Court, and the decree cannot be said as a nullity or void. This Court in C. Malla Reddy v. Shiva Goud, , held as follows:
The execution (petition) has been filed in respect of a decree obtained in OS No. 43 of 1994 by the respondent-decree holder. It is the contention of the petitioner who is the judgment-debtor that the decree is not executable because the decree has been obtained ex parte. It is also contended that the plaintiff - decree holder is not entitled to get any relief because the daughter-in-law and the grandson are the real beneficiaries of the properly in question. Even if the contention is accepted, that does not mean that the decree is inexecutable. An ex parte decree is as well executable as a contested decree. Moreover, if the contention is that the decree has been obtained by the plaintiff who is not entitled to a decree, that question has to be agitated in the suit or by challenging the decree by way of appeal, review or revision whatever provision may apply. The decree cannot be challenged in execution. Once a decree is passed, the executing Court cannot go behind the decree or merits of the case. Thus, the decree is not inexecutable. It has been passed by a Court having jurisdiction. The contentions raised are therefore devoid of substance and the revision is dismissed at the stage of admission.
In another case, this Court in V. Chinna Lakshmaiah v. V. Samurla Ramaiah, , held as follows:
.....So long as the Court is having jurisdiction, the decree cannot be ignored even if it is erroneous and the only way it can be corrected is by preferring an appeal or revision. It is not open to a party to contend in another suit or in a collateral proceeding that a decree passed against him is void merely on the ground of illegality. The Execution Court cannot go beyond a decree. It is not for the Executing Court to decide whether the decree passed is legal or illegal or whether it is erroneous or not but it is open to the Executing Court to consider whether the decree sought to be executed is void or not. Any decree passed by any Court or forum is void if the Court or the forum which passed it has no jurisdiction over the subject matter of the party.
This Court in the case of E.R. Badiri Narayana v. K. Nagappa, , held follows:
....it is not open for the executing Court to go behind the decree and to hold that the said decree was obtained by fraud when, in fact, the tenant failed to substantiate such a plea. The law is well settled that the executing Court has no power to question the correctness of the decree or to entertain an objection that it had been obtained by fraud. The executing Court cannot decide the rights of the parties under the decree. But, where there is a question of want of jurisdiction involved it is open to the executing Court to go behind the decree for the limited purpose of finding out whether, in fact, the decree was passed without jurisdiction and beyond that it cannot go. An executing Court is not the proper forum to go into questions of substantive law.
6. A Division Bench of this Court also in the case of Kolli Purushotham Chowdary v. Balaji Finance Corporation, Tadepalligudem, (DB), held that Section 47 can be invoked even in respect of ex parte decrees and no distinction can be made between an ex parte decree and a decree passed on merits.
7. The Apex Court in Government of Orissa v. Ashok Transport Agency, 2002 (5) ALD 54 (SC), held in Paras 15 and 16 as follows:
15. In the case of Ittyauriya Mathai v. Varkey Varkey and Anr., , the question which fell for consideration before this Court was if a Court, having jurisdiction over the parties to the suit end subject-matter thereof passed a decree in a suit which was barred by time, such a decree would come within the realm of nullity and the Court answered the question in the negative holding that such a decree cannot be treated to be nullity but at the highest be treated to be an illegal decree. While laying down the law, the Court stated at page No. 910 thus:
"If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities.
16.....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.
8. If a question that a viodable decree is allowed to be raised under Section 47 of the Code, the same would amount to opening doors for unnecessary litigation as a result of which lis cannot attain any finality.
9. For the aforesaid reasons, I do not see any illegality or irregularity in the order passed by the Court below and the Civil Revision Petition is devoid of any merits and it is accordingly dismissed. There shall be no order as to costs.