IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 22/06/2006
Coram
The Hon'ble Mr.JUSTICE S.RAJESWARAN
C.R.P.(NPD) No.681 of 2006
St.Mark's Educational Trust by its
Managing Trustee
Prince Babu Rajendran
143, Radha Nagar Main Road
Chromepet,Chennai
.. Petitioner
-Vs-
S.Sekar .. Respondent
Revision Petition filed against the order dated 14.3.2006, passed in
E.A. in unnumbered S.R.No.11729/2005 in E.P.No.109/2005, in O.S.No.1 98/1988
on the file of the District Munsif Court Alandur.
!For Petitioner : Mr.N.S.Nandakumar
^For Respondent : Mr.R.Subramanian
:ORDER
The judgment-debtor in the E.P.No.109/2005 in O.S.No.198/1988, on the
file of the learned District Munsif Court, Alandur, is the Revision Petitioner
before this Court. The respondent herein filed O.S.No.19 8/1988 before the
Sub-Court, Poonamallee for a declaration that the ‘B’ schedule property
mentioned in the schedule is his absolute property and for directing the 1st
defendant/Revision Petitioner to put the the decree holder/respondent in
vacant possession of the suit property. By judgment and decree dated
31.10.1995, the trial court decreed the suit for title and dismissed the same
for possession. The respondent/plaintiff herein alone filed an appeal in
A.S.No.384/1996 before this Court and a Division Bench of this court by its
elaborate judgment dated 29.3.2005 allowed the appeal and granted the decree
for possession also. Against the judgment and decree dated 29.3.2005, the
Revision Petitioner filed Special Leave Petition. But the same was also
dismissed by the Hon’ble Supreme Court on 13.5.2005. The respondent/decree
holder filed E.P.No.109/2005 to execute the decree and after receiving the
notice in the execution proceedings, the Revision Petitioner filed an
Execution Application under Sec.47 and with a prayer to declare that the
decree dated 31.10.1995 is null and void and not executable against him. The
execution court by order dated 14.3.2 006 in unnumbered SR No.11729/2005 in
E.P.No.109/2005 rejected the same and challenging the order dated 14.3.2006,
the above Revision Petition has been filed by the Revision Petitioner herein.
2. Heard the learned counsel for the Revision Petitioner and also the
learned counsel for the respondent. I have also perused the documents filed
in support of the submissions.
3. Learned counsel for the Revision Petitioner contended that the
execution court has failed to exercise its jurisdiction to decide the issue in
accordance with Sec.47 of C.P.C., read with Rule 143 of the Civil Rules of
Practice. He further submitted that the Revision Petitioner had no occasion
to bring it to the notice of the court during the hearing of the suit and
appeal about the fraud played by the decree holder against the courts and
other authorities which came to light when he took steps to obey and to give
effect to the decree in the suit.
4. Per contra, learned counsel for the respondent submitted that the
executing court has rightly rejected the Sec.47 application as the executing
court cannot go behind the decree and reopen the matter afresh.
5. It is the case of the Revision Petitioner that he pursued the suit
and appeal bonafidely without realising that the respondent herein played
premeditated fraud by making and fabricating successive documents and obtained
orders suppressing the public records with the calculated intention to cheat
the real owner and legally interested persons. Therefore, according to him,
the decree in O.S.No.198/1988 is a nullity and unenforceable. It is the
revision petitioner’s further case that the decree is not executable against
the petitioner in view of the inherent defect in the title of the property and
also description of the property mentioned in the schedule in the decree.
Learned counsel for the petitioner relied on the judgment reported in (200 1)
6 SCC 534 (Dhurandhar Prasad Singh v. Jai Prakash University) to contend that
objection under Sec.47 about the executability of the decree can be allowed if
it is found that the decree is a nullity.
6. In the above judgment, the Hon’ble Supreme Court has elaborately
dealt with the power of the executing court under Sec.47 of C.P.C., and held
as follows:-
“23. Under Section 47 of the Code, all questions arising between the parties
to the suit in which the decree was passed or their representatives relating
to the execution, discharge or satisfaction of decree have got to be
determined by the court executing the decree and not by a separate suit. The
powers of the court under Section 47 are quite different and much narrower
than its powers of appeal, revision or review. A first appellate court is not
only entitled but obliged under law to go into the questions of facts as well,
like the trial court, apart from questions of law. Powers of the second
appellate court under different statutes like Section 100 of the Code, as it
stood before its amendment by Central Act 104 of 1976 with effect from 1.2
.1977, could be exercised only on questions of law. Powers under statutes
which are akin to Section 100 of the Code, as amended and substituted by the
aforesaid Central Act, have been further narrowed down as now in such an
appeal only a substantial question of law can be considered. The powers of
this Court under Article 136 of the Constitution of India, should not be
exercised simply because substantial question of law arises in a case, but
there is further requirement that such question must be of general public
importance and it requires decision of this Court. Powers of revision under
Section 115 of the Code cannot be exercised merely because the order suffers
from
legal infirmity or substantial question of law arises, but such an error must
suffer with the vice of error of jurisdiction. Of course, the revisional
powers exercisable under the Code of Criminal Procedure and likewise in
similar statutes stand on entirely different footing and are much wider as
there the court can go into the correctness, legality or propriety of the
order and regularity of proceeding of the inferior court. It does not mean
that in each and every case the revisional court is obliged to consider
questions of facts as well like a first appellate court, but the court has
discretion to consider the same in appropriate cases whenever it is found
expedient and not in each and every case. Discretion, undoubtedly, means
judicial discretion and not whim, caprice or fancy of a Judge. Powers of
review cannot be invoked unless it is shown that there is error apparent on
the face of the record in the order sought to be reviewed.
24. The exercise of powers under Section 47 of the Code is
microscopic and lies in a very narrow inspection hole. Thus it is plain that
executing court can allow objection under Section 47 of the Code to the
executability of the decree if it is found that the same is void ab initio and
nullity, apart from the ground that the decree is not capable of execution
under law either because the same was passed in ignorance of such a provision
of law or the law was promulgated making a decree inexecutable after its
passing. In the case on hand, the decree was passed against the Governing
Body of the College which was the defendant without seeking leave of the court
to continue the suit against the University upon whom the interest of the
original defendant devolved and impleading it. Such an omission would not
make the decree void ab initio so as to invoke application of Section 47 of
the Code and entail dismissal of execution. The validity or otherwise of a
decree may be challenged by filing a properly constituted suit or taking any
other remedy available under law on the ground that the original defendant
absented himself from the proceedings of the suit after appearance as he had
no longer any interest in the subject of dispute or did not purposely take
interest in the proceedings or colluded with the adversary or any other ground
permissible under law.”
7. From the above judgment, it is very clear that the powers of the
court under Sec.47 are much narrower than its powers of appeal, revision or
review. The executing court can allow objections under Sec.47 of the Code to
the executability of the decree if it is found that the same is void ab initio
and a nullity, apart from the ground that the decree is not capable of
execution under law either because the same was passed in ignorance of such a
provisio n of law or the law as promulgated making the decree inexecutable
after its passing. The validity or otherwise of a decree may be challenged by
getting a properly instituted suit or taking any other remedy under law. The
executing court cannot go behind the decree except when the decree is a
nullity or is without jurisdiction.
8. Learned counsel for the respondent relied on the judgment of the
Hon’ble Supreme Court reported in (2005) 8 SCC 41 (TCI Finance Ltd. v.
Calcutta Medical Centre Ltd.) to submit that the Hon’ble High Court should not
enlarge the scope of the execution proceeding and treat it as a Full-blown
suit. In the above judgment, the Hon’ble Supreme Court held as follows:-
“7. In support of the appeals, learned counsel for the appellant submitted
that a new dimension has been given by the Division Bench. Admittedly,
Respondent 1 does not claim any right of ownership over the attached
properties. No claims of the nature set forth by Respondent 1 can be examined
in terms of Section 47 or Order 21 Rule 58 CPC. By the impugned judgment, the
High Court has enlarged the scope of the execution proceedings and has treated
it as a full-blown suit without even recording any reason as to how Respondent
1 has any adjudicable interest in the proceedings. The question of tenancy of
tenancy cannot be decided by the executing court.”
“10. The executing court cannot go beyond the decree. It is settled
position in law which flows from Section 38 CPC, except when the decree is a
nullity or is without jurisdiction. The crucial expression in Section 47 is
“All questions arising between the parties to the suit” “or their
representatives”. Order 21 Rule 54 deals with attachment of immovable
property, while Rule 58 deals with adjudication of claims to, or objections to
attachment of property. Case of Respondent 1is not covered by Section 47 or
Order 21 Rule 54 or Rule 58. The High Court misconceived the nature of claim
set up by Respondent 1. Learned Single Judge rightly noted that Respondent 1
was not having independent right to the properties. It found that the right
claimed was as assignee under the judgment-debtor. The agreement, if any, in
that regard was not produced before the Court and, therefore, the learned
Single Judge drew adverse inference. Before the Division Bench, the stand of
Respondent 1was that it was a tenant. Without indicating any reason as to how
the reasoning of the learned Single Judge was wrong the Division Bench
enlarged the scope of the controversy and directed the executing court to
decide the question of tenancy, which is legally impermissible.”
9. In the light of the well settled legal principles, let me examine
the case on hand.
10. It is not in dispute that having suffered a decree, the Revision
Petitioner did not file a regular appeal questioning the title of the
respondent herein. It is only the respondent who filed an appeal before this
court challenging the disallowed portion in the decree. The trial court
rendered a finding that the revision petitioner herein is a trespasser and he
is a person in possession without any authority. This finding was not at all
challenged by the revision petitioner and the same reached its finality. In
such circumstances it is not for the revision petitioner herein to contend
that the respondent by creating and fabricating documents is thus cheating the
true and real owner and legally interested persons.
11. The revision petitioner herein filed Sec.47 application on the
ground that the respondent herein did not have proper title and the documents
he filed before the trial court to prove the title are bogus documents. Such
kind of plea cannot be allowed to be raised for the first time by the
petitioner in Sec. 47 application and if it is allowed to be raised, the same
will defeat the very decree itself and in such a case the executing court has
to travel beyond the scope of the decree which is not permissible, that too at
the instance of a trespasser.
12. The court below has considered the entire facts and rightly came
to the conclusion that all the documents relied on by the revision petitioner
related to his defence in relation to the declaration relief sought for by the
respondent herein which was already held against the petitioner. In such
circumstances, I do not find any merit in the Revision Petition and the same
is liable to be dismissed. Accordingly, the Civil Revision Petition is
dismissed. No costs. C.M.P.No.5 603/2006 is also dismissed.
sks/sgl
To
The District Munsif Court,
Alandur.