TMI Blog2017 (3) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... or invalidity. These are therefore rejected. On a consideration of all relevant aspects in the entirety, we are thus disinclined to sustain the impugned orders and hereby set-aside the same. The appeals are allowed. The Executing Court would proceed with the execution proceedings and take it to the logical end with utmost expedition. No costs. - Civil Appeal No: 4313-4314 Of 2017 (Arising Out of S.L.P (C) Nos.20745-20746 of 2016 ) - - - Dated:- 21-3-2017 - Mr. Arun Mishra And Mr. Amitava Roy JJ. For the Appellant : Mr. J.S. Bakshi, Adv. Mr. Saurabh Ajay Gupta,Adv. Mr. Amitesh Singh Bakshi, Adv. Mr. Saurabh Singhal, Adv. Mr. Nishant Bishnoi, Adv. For the Respondent : Mr. M.P. Parthiban, Adv. Mr. T. R. B. Sivakumar,Adv.JUDGMENT 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, hereinafter to be referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, 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 ₹ 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 As the records would reveal, a defective appeal was filed on behalf of the respondent thereafter only to be withdrawn in due course.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 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay of three years. 11. Meanwhile, however the respondent filed his counter-affidavit in the execution proceedings and also followed it 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 22. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh vs. Jai Prakash University and others, AIR 2001 SC 2552, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view. 23. Having regard to the contextual facts and the objections raised by the respondent, we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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