O.P.(C) No. 3331/2019

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 ``` ## `OP(C) NO. 3331 OF 2019` ``` AGAINST THE ORDER DATED 04.09.2019 IN E.A.NO.17/2019 IN E.P.NO.21/2018 IN OS 166/1994 OF SUB COURT, CHERTHALA ``` ## `PETITIONERS:` ``` 1EZHUPUNNA PANCHAYAT PATTIKAJAATHI SERVICE SAHAKARANA SANGHOM LTD. NO.A 815, REPRESENTED BY ITS SECRETARY, KUNJUMON, AGED 46, S/O LATE MARUKUTTY, ERAMALLOOR, CHERTHALA. ``` ``` 2KUNJUMON, AGED 46 YEARS, S/O LATE MARUKUTTY, SECRETARY, EZHUPUNNA PANCHAYAT PATTIKAJAATHI SERVICE SAHAKARANA SANGHOM LTD. NO.A 815,ERAMALLOOR, CHERTHALA. ``` ``` BY ADV SHIBI. K.P. ``` ## `RESPONDENTS:` ``` 1K.R.DEVADAS, S/O N.K. RAMAN, KUMARAPURAM, EZHUPUNNA P.O., EZHUPUNNA VILLAGE, CHERTHALA - 688 537. ``` ``` 2ABDUL KAREEM (DISABLED PERSON), S/O LATE KOCHUNNI, VALLANATTU HOUSE, ERAMALLOOR P.O., CHERTHALA, REPRESENTED BY NEXT FRIEND K.M. NAZAR, S/O MUHAMMED, KANIYAMPARAMBIL, CHANDIROOR P.O., AROOR, CHERTHALA -688 537. ``` ``` 3RETNA BHAI (RETNAMMA), W/O LATE AANTHA MALLAN, CHANGAMPUZHA MADOM, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE - 688 524. ``` ``` 4RETNAKARA MALLAN (RETNAKARA RAO), S/O LATE AANTHA MALLAN, CHANGAMPUZHA MADOM, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE - 688 524. ``` ``` O.P.(C)No.3331/2019 ``` ``` -:2:- ``` - `5 DAMODARA MALLAN, S/O LATE AANTHA MALLAN,` ``` CHANGAMPUZHA MADOM, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE - 688 524. ``` - `6 ANNAKUTTY, W/O CHANDI XAVIER, VALLANATTU HOUSE, THURUTHEL, CHANDIROOR P.O., CHERTHALA -688 537.` - `7 THRESIAKUTTY @ LILLY, PULITHARA HOUSE, AROOR P.O., AROOR - 688 534.` - `8 PHILOMINA KUNJAPPA, KUMARA CHANGANATU, KELTROL RAOD, AROOR P.O., PIN – 688534.` - `9 EALAMMA, D/O CHANDI XAVIER, KANNAHATHURUTHEL, CHANDIROOR P.O., CHERTHALA - 688 537.` - `10 MERCY PAUL, POTTASHERRI, EZHUPUNNA SOUTH, EZHUPUNNA P.O., CHERTHALA - 688 537.` - `11 JOSEPH VALLAVANATTU, KANNACHATHURUTHEL, CHANDIROOR P.O., CHERTHALA.` - `12 GEORGE VALLAVANATU,` - `KANNACHATHURUTHEL, CHANDIROOR P.O., CHERTHALA - 688 537.KANNACHATHURUTHEL, CHANDIROOR P.O., CHERTHALA.` - `13 USHA MALLAN, W/O SREEDHARA MALLAN, CHANGAMPUZHA MADOM, CMC-11, CHERTHALA NORTH VILLAGE - 688 524.` - `14 GAYATHRI S. MALLAN, D/O SREEDHARA MALLAN, CHANGAMPUZHA MADOM,CMC-11, CHERTHALA NORTH VILLAGE - 688 524.` ``` O.P.(C)No.3331/2019 ``` ``` -:3:- ``` ## `BY ADVS. SRI.K.G.PAVITHRAN SHRI.ADARSH S.` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.3331/2019 ``` ``` -:4:- ``` Dated this the 22[nd] day of June,2022 ## **J U D G M E N T** The original petition is filed challenging the order in E.A.No.17/2019 in E.P. No.21/2018 O.S. No.166/1994 (Ext.P6) passed by the Court of the Subordinate Judge, Cherthala. 2. The petitioners’ case, in the nutshell, in the memorandum of the original petition, is that; the first petitioner is a duly registered co-operative society formed for the implementation of the welfare projects of the Scheduled Caste community. Respondent Nos.1 and 2 had filed Ext.P1 plaint, inter alia, seeking a decree for partition and recovery of possession. The first petitioner was the third defendant in the suit. In Ext.P1 plaint, the respondents 1 and 2 had shown the first petitioner to be represented by its Chairman, instead of its Secretary. It was later that the Secretary ``` O.P.(C)No.3331/2019 ``` ``` -:5:- ``` came to learn that the decree was passed and Ext.P2 execution petition was filed to execute the decree. Immediately, the second petitioner, the present Secretary of the first petitioner, filed Ext.P4 application to implead him as the representative of the first petitioner in the execution petition. He also filed Ext.P3 application, to keep the delivery in abeyance and Ext.P5 application, under Section 47 of the Code of Civil Procedure, 1908(in short, ‘C.P.C.’), to declare the decree a nullity and unenforceable. However, without adverting to Ext.P5 application in its correct perspective, the court below has passed Ext.P6 order. Ext.P6 order is erroneous and wrong. Hence, the original petition. 3. Heard; Sri. K.P. Shibi, the learned counsel appearing for the petitioners and Sri. Adarsh S., the learned counsel appearing for the respondents 1 and 2 on the question of admission of the original petition. ``` O.P.(C)No.3331/2019 ``` ``` -:6:- ``` 4. The point that arises for consideration is whether there is any error in Ext.P6 order?. 5. Ext.P1 plaint was filed against the first petitioner society, which was shown to be represented by its President. The petitioners have maintained stoic silence in the original petition as to whether they had received the summons or had contested the suit. They have also not produced the judgment and decree pronounced in the suit. Nonetheless, as reflected from Ext.P6 order, the petitioners had through its President filed FAO No.15/2010 before this Court. So, therefore, it is only to be assumed that the President was competent to represent the first petitioner. Even otherwise, it was the bounden duty of the first petitioner to have contested the suit on its original side and raised the objection that the first petitioner was not properly described and represented in the plaint. After keeping silent for all these years, it is untenable ``` O.P.(C)No.3331/2019 ``` ``` -:7:- ``` for the petitioners to now contend that the decree is a nullity on the ground the first petitioner was shown to be represented by its President, instead of its Secretary. Hence, the petitioners want the decree to be declared a nullity under Section 47 of the C.P.C. 6. Section 47 of the C.P.C. Section 47 of the C.P.C. reads as follows: 47. Questions to be determined by the Court executing decree.—(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. 1[* * * * *] (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. 2[Explanation 1.—For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II—(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and ``` O.P.(C)No.3331/2019 ``` ``` -:8:- ``` (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]” 7. Interpreting Section 47 C.P.C., the Hon’ble Supreme Court in a case of identical nature in **Dhurandar Prasad Singh Versus Jai Prakash University and others** [(2001) 6SCC 534] has 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 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 trial court apart from questions of law. Powers of 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 ``` O.P.(C)No.3331/2019 ``` ``` -:9:- ``` Act, have been further narrowed down as now in such an appeal only 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 much wider as there the court can go into correctness, legality or propriety of the order and regularity of proceeding of inferior court. It does not mean that in each and every case the revisional court is obliged to consider question 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 decree is not capable of ``` O.P.(C)No.3331/2019 ``` ``` -:10:- ``` 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 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 original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law.” 8. In **S. Bhaskaran V. Sebastian** [(2019) (9) SCC 161], the Hon’ble Supreme Court relying on **Rameshwar Dass Gupta v. State of U.P. and Anr.** [1996 (5) SCC 728] has reiterated the well established principle that an Execution Court cannot travel beyond the scope of a decree or order. Any order passed by the executing court by travelling beyond the decree or ``` O.P.(C)No.3331/2019 ``` ## `-:11:-` order is without jurisdiction. 9. Similarly, in the case of **Kiran Singh and Others v. Chaman Paswan and Others** [AIR 1954 SC 340] the Hon’ble Supreme Court has observed that a court executing a decree cannot go behind the decree and must execute it as it stands. It has no power to entertain any objection as to the validity, legality or correctness of the decree. 10. Thus, it is neigh settled that an Execution Court can hear and decide on questions pertaining to the execution of decree and cannot go behind the decree to decide upon merits of case. 11. The objective of Section 47 is to prohibit multiplicity of proceedings, when the issues can be decided by the executing court itself. The main principle is that all questions relating to the execution, discharge or satisfaction of the decree has to be determined in the execution proceeding and not by a ``` O.P.(C)No.3331/2019 ``` ``` -:12:- ``` separate suit. 12. In the case at hand, the suit was instituted against the first petitioner society. It was immaterial whether the respondents 1 and 2 had described the first petitioner to be represented by its President or its Secretary because the name of the first petitioner is rightly shown in the cause title. Any of its office bearers could have contested the suit. Instead, they have adopted a wait and watch policy. Now, at the fag end of the proceeding, they are attempting to stall the respondents 1 and 2 from enjoying the fruits of the decree. The contention that because the first petitioner was shown to be represented by its President, the decree is a nullity, is untenable. The said question is not a matter to be decided by the Execution Court under Section 47 of the C.P.C. I do not find any error in Ext.P6 order, warranting the invocation of the supervisory jurisdiction of this Court ``` O.P.(C)No.3331/2019 ``` ``` -:13:- ``` under Article 227 of the Constitution of India. The original petition is groundless and is hence dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/22.06.22 //True copy/ P.A.To Judge ``` O.P.(C)No.3331/2019 ``` ``` -:14:- ``` ## `APPENDIX` - `PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE PLAINT IN OS NO. 166/1994 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, CHERTHALA.` - `EXHIBIT P2 THE TRUE COPY OF THE EP NO.21/2018 IN OS NO. 166/1994 ON THE FILE OF THE SUB COURT, CHERTHALA.` - `EXHIBIT P3 THE TRUE COPY OF THE 1ST PETITIONER'S APPLICATION EA NO. 16/2019 IN EP NO.21/2018 IN OS NO. 166/1994 ON THE FILE OF THE SUB COURT, CHERTHALA.` - `EXHIBIT P4 THE TRUE COPY OF THE 1ST PETITIONER'S APPLICATION EA NO. 17/2019 IN EP NO.21/2018 IN OS NO. 166/1994 ON THE FILE OF THE SUB COURT, CHERTHALA.` - `EXHIBIT P5 THE TRUE COPY OF THE 1ST PETITIONER'S APPLICATION EA NO. 19/2019 IN EP NO.21/2018 IN OS NO. 166/1994 ON THE FILE OF THE SUB COURT, CHERTHALA.` - `EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 04-092019 OF THE SUB COURT, CHERTHALA IN EA NO. 17/2019 IN EP NO.21/2018 IN OS NO. 166/1994.` - `EXHIBIT P7 THE TRUE COPY OF THE BYE-LAW OF THE 1ST PETITIONER SOCIETY.` ``` RESPONDENT’S EXHIBITS: NIL ```