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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.