S. Godhandaraj v. R. Ayyamp erumal and Balavinayakam

OP(C) NO. 1244 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25[TH] DAY OF AUGUST 2022 / 3RD BHADRA, 1944 OP(C) NO. 1244 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OS 1180/2012 OF PRINCIPAL SUB COURT, TRIVANDRUM** ## **PETITIONER/S:** S. GODHANDARAJ, (MISTAKENLY TYPED AS 'GODENDARAJ' IN THE LOWER COURT PROCEEDINGS),AGED 49, SON OF SIVAGURUNATHAN, T.C. 38/2936 ( 3 ),SREEGANGA, ( VIVEKANANDHA NAGAR, NEAR TAMIL SCHOOL ),CHALA P O, THIRUVANANTHAPURAM,, PIN - 695038 BY ADVS. AYYAPPAN SANKAR S.HRIDYA ## **RESPONDENT/S:** 1 R. AYYAMPERUMAL, AGED 49 YEARS, SON OF RAMASWAMY ACHARI,SOFTWARE ENGINEER, RESIDING AT T.C.20/41, BHAGAVATHY ILLAM, KARAMANA P O, THYCAUD VILLAGE, THIRUVANANTHAPURAM,, PIN - 695002 2 BALAVINAYAKAM, AGED 45 YEARS, SON OF SIVAGURUNADHAN,M/S. PERFECT ENGINEERING CO., P.O. BOX 32627, JEBEL ALI, DUBAI (UNITED ARAB EMIRATES),FROM T.C. 38 / 2936 ( 3 ), VIVEKANANDHA NAGAR ),TAMIL SCHOOL, CHALAI P O,THYCAUD VILLAGE, THIRUVANANTHAPURAM,, PIN - 695036 BY ADVS. Anjali A. S. PRAVEEN VYASAN(P-200) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1244 OF 2022 2 ## **JUDGMENT** Aggrieved by the common order in E.A.Nos.230/2022 & 265/2022 in E.P.No.211/2019 in O.S.No.1180/2012 (Ext.P12) of the Court of the Principal Subordinate Judge, Thiruvananthapuram, the 2[nd] judgment debtor in the execution petition is before this Court. The decree holder and the 1[st] judgment debtor are the respondents. 2. The relevant facts, for the determination of the original petition, are: the petitioner and the 2[nd] respondent are brothers. The 2[nd] respondent was employed abroad. He had executed a power of attorney in favour of the petitioner to manage the affairs of his house, which is situated on the first floor of the property belonging to the petitioner. The 1[st] respondent is the close friend of the petitioner. The petitioner had availed financial assistance from the 1[st] respondent to pay off 3 OP(C) NO. 1244 OF 2022 the debts of the 2[nd] respondent. As security for repayment of the loan amount, the petitioner on the strength of the power of attorney, executed Ext.P3 agreement of sale with the 1[st] respondent. The sale consideration was fixed at Rs.10,00,000/-, which was much below the actual market price. The 2[nd] respondent had failed to repay the amount and put the entire burden on the shoulder of the petitioner. Taking undue advantage of the situation, the 1[st] respondent issued lawyer notices to the petitioner and the 2[nd] respondent and, thereafter, filed the suit before the court below. On coming to learn about the suit, the relationship between the petitioner and the 2[nd] respondent got strained. Hence, the petitioner repaid the entire debt to the 1[st] respondent. In fact, the petitioner paid an excess amount of Rs.1,50,000/-. The petitioner reposed confidence in the 1[st] respondent, that he would not contest the suit. However, the 1[st] respondent proceeded OP(C) NO. 1244 OF 2022 4 with the suit. The 2[nd] respondent contested the suit, after cancelling the power of attorney executed in favour of the petitioner, by filing Ext.P6 written statement. The court below, by Ext.P7 judgment and Ext.P8 decree, decreed the suit. The decree has been put to execution. The 2[nd] respondent did not deposit the decree debt and the 1[st] respondent has proceeded against the property. Only recently, the petitioner came to learn about the unfair conduct of the 1[st] respondent. Immediately, he filed Ext.P10 application under Section 47 of the Code of Civil Procedure (in short “Code”), interalia, contending that the decree is a nullity. The 1[st] respondent objected to the application through Ext.P11. The Court below, without appreciating the contentions raised by the petitioner in Ext.P10 application, dismissed the same by Ext.P12 order. Ext.P12 is manifestly illegal and unsustainable in law. Hence, the original petition. OP(C) NO. 1244 OF 2022 5 3. Heard; Sri. Ayyappan Sankar, the learned counsel appearing for the petitioner and Sri.Praveen Vyasan, the learned counsel appearing for the 1[st] respondent. 4. Sri. Ayyappan Sankar vehemently argued that the court below has erroneously rejected Ext.P10 application by the impugned order without appreciating the scope and purport of Section 47 of the Code. According to him, the 1[st] respondent has perpetrated fraud on the petitioner and the 2[nd] respondent. Therefore, the decree is nullity. When fraud is perpetrated, the execution court can refuse to execute the decree. He placed emphasis on the decisions of the Honourable Supreme Court in **Brakewel Automotive Components (India) Pvt. Ltd. (M/s.) vs. P.R. Selvam Alagappan** [2017 KHC 6211], **A.V. Papayya Sastry and Others vs. Government of A.P. and others** [2007 KHC 3240], **Meghmala and others vs. G.Narasimha Reddy and others** [2010 KHC 4577] OP(C) NO. 1244 OF 2022 **==> picture [7 x 9] intentionally omitted <==** and the decision of this Court in I **ndia Cements Capital limited (M/s.) vs. William and others** [2015 (4) KHC 728], to canvass the position that the application under Section 47 is maintainable when a decree is obtained by fraud. He has prayed that the impugned order may be set aside and the decree may be declared to be unexecutable. 5. Sri.Praveen Vyasan countered the above submission and contended that the petitioner has no locus standi to file Ext.P10 application. In fact there is no decree passed against him. The owner of the property – the 2[nd] respondent - has not appealed against Ext.P7 and Ext.P8 judgment and decree and is not contesting the execution petition. The 2[nd] respondent has categorically stated in the reply notice send to the 1[st] respondent that he is willing to perform his part of the contract. Even though the petitioner was acting as the power of attorney holder of the 2[nd] respondent - his OP(C) NO. 1244 OF 2022 7 brother - and had alleged that he had repaid the entire sale consideration, he has refused to mount the box and let in evidence. The power of attorney was subsequently cancelled. The sole intention of the petitioner is to protract the final determination of the execution petition. The petitioner has resisted the execution petition on the ground that he has approached this Court. There is no bonafides on his part. Hence, the original petition may be dismissed. 6. The point is whether there is any error or illegality in Ext.P12 order passed by the court below. 7. The suit was filed by the 1[st] respondent against the petitioner and the 2[nd] respondent, seeking a decree for specific performance of an agreement of sale that was executed by the petitioner, acting as the power of attorney holder of the 2[nd] respondent. The petitioner did not contest the suit. Even though he has alleged to have repaid the OP(C) NO. 1244 OF 2022 8 debt, he wilfully refused to mount the box and let in any evidence. His brother - the 2[nd] respondent – owner of the property - has stated in Ext.B2 reply notice that he is ready and willing to perform his part of the contract. Admittedly, the property belongs to the 2[nd] respondent, who has cancelled the power of attorney in favour of the petitioner. 8. The Trial Court, after appreciating the pleadings and materials on record, decreed the suit as against the 2[nd] respondent, directing him to execute the sale deed in respect of the 1[st] floor of the two storied building situated in the plaint schedule property within two months of the date of the decree. There is no decree against the petitioner. The 2[nd] respondent has not challenged the decree or has complied the decree, compelling the 1[st] respondent to file E.P.No.211/2019. The execution petition was filed in 2019. The petitioner is not a party in the execution petition. 9. Surprisingly on 08.06.2022, the petitioner OP(C) NO. 1244 OF 2022 9 has filed Ext.P10 application under Section 47 of the Code to decide the dispute between him and the 1[st] respondent, relating to the execution discharge and satisfaction of the decree. The application is opposed by the 1[st] respondent through Ext.P11, and the court below has passed the impugned Ext.P12 order. 10. The Honourable Supreme Court in **Brakewel Automotive Components (India) Pvt. Ltd. (M/s.)** (supra) considering the scope and purport of Section 47 has held as follows: “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 OP(C) NO. 1244 OF 2022 10 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 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 OP(C) NO. 1244 OF 2022 11 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.” 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 OP(C) NO. 1244 OF 2022 12 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”. 11. Therefore, the law is quite succinctly laid down by the Honourable Supreme Court in the above decision and a plethora of precedents that the execution court is not empowered to travel behind the decree nor sit in appeal over the same and pass any order jeopardizing the rights of the parties unless the court which passed the decree lacks inherent jurisdiction. 12. Recently, a three Judge Bench of the Honourable Supreme Court in **Rahul S. Shah vs. Jinendra Kumar Gandhi and others** [2021 (4) KHC 148] has, inter-alia, held an application under Section 47 must be one arising between the parties and the dispute must relate to OP(C) NO. 1244 OF 2022 13 execution, discharge or satisfaction of the decree. Further, execution proceedings should not be permitted to be misused and to obstruct justice. 13. Undisputedly, in the case at hand the owner of the property, that is the 2[nd] respondent, against whom the decree is passed, has no grievance. Neither has he challenged the decree nor resisted the execution petition. The petitioner, who is a rank outsider and has remained a mute spectator, all of a sudden at the fag end of the execution proceeding i.e., at the eve of the delivery of the property, has come up with the present application, seeking adjudication of an alleged dispute on the ground that the decree is a nullity due to the fraud perpetrated by the 1[st] respondent. The petitioner has no locus standi to file the application because he has no interest in the property, he is not a judgment debtor, no decree is passed against him and the true owner of the property has no grievance. OP(C) NO. 1244 OF 2022 14 I do not find any ground or merit in the claim raised by the petitioner, which is totally unsustainable in law and beyond the scope and purport of Section 47 of the Code and well explained in **Brakewel Automotive Components (India) Pvt. Ltd. (M/s.) and Rahul S. Shah** (supra). The intention of the petitioner, as found by the court below, is only to sabotage the 1[st] respondent from enjoying the fruits of the decree. There is no error or illegality in Ext.P12 order warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is dismissed. Sd/- ## **C.S.DIAS, JUDGE** rkc/25.08.22 OP(C) NO. 1244 OF 2022 15 ## **APPENDIX OF OP(C) 1244/2022** PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE SETTLEMENT DEED NO.3040/2001 DATED 19.11.2001 OF CHALA S.R.O. |Exhibit P2|TRUE PHOTOCOPY OF THE GENERAL POWER OF| |---|---| ||ATTORNEY DATED 12.7.2010 EXECUTED BY 2ND| ||RESPONDENT IN FAVOUR OF PETITIONER| |Exhibit P3|TRUE PHOTOCOPY OF THE AGREEMENT FOR SALE| ||EXECUTED BY THE PETITIONER IN FAVOUR OF| ||THE 1ST RESPONDENT ON 01.04.2011| |Exhibit P4|TRUE PHOTOCOPY OF THE PLAINT IN O.S.| ||NO.1180/2012 FILED BY THE 1ST RESPONDENT| ||IN THE SUB COURT, THIRUVANANTHAPURAM, IN| ||THE MONTH OF SEPTEMBER 2012| |Exhibit P5|TRUE PHOTOCOPY OF THE RECEIPT DATED| ||17.11.2014 SIGNED AND ISSUED BY THE 1ST| ||RESPONDENT AND SIGNED BY HIS WIFE AS ONE| ||OF THE WITNESSES| |Exhibit P6|TRUE PHOTOCOPY OF THE WRITTEN STATEMENT| ||DATED 27.10.2015 FILED BY THE 2ND| ||RESPONDENT/<br>1ST<br>DEFENDANT<br>IN| ||O.S.1180/2012| |Exhibit P7|TRUE PHOTOCOPY OF THE JUDGMENT DATED| ||18.12.2018 OF PRINCIPAL SUB COURT,| ||THIRUVANANTHAPURAM IN O.S. NO.1180/2012| |Exhibit P8|TRUE PHOTOCOPY OF THE DECREE DATED| ||18.12.2018 OF PRINCIPAL SUB COURT,| ||THIRUVANANTHAPURAM IN O.S. NO.1180/2012| |Exhibit P9|TRUE PHOTOCOPY OF THE E.A. NO.230/2022| ||FILED BY PETITIONER IN E.P. NO.211/2019| ||IN O.S. NO.1180/2012 ON THE FILE OF| ||HON'BLE<br>PRINCIPAL<br>SUB<br>COURT,| OP(C) NO. 1244 OF 2022 16 THIRUVANANTHAPURAM DATED 28.5.2022 Exhibit P10 TRUE PHOTOCOPY OF THE E.A. NO.265/2022 FILED BY PETITIONER IN E.P. NO.211/2019 IN O.S. NO.1180/2012 ON THE FILE OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM Exhibit P11 TRUE PHOTOCOPY OF THE OBJECTION DATED 06.06.2022 TO E.A. NO.299/2022 IN E.P. NO.211/2019 IN O.S. NO.1180/2012 ON THE FILE OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM FILED BY THE 1ST RESPONDENT Exhibit P12 TRUE PHOTOCOPY OF THE COMMON ORDER DATED 20.06.2022 IN E.A. 230/2022 AND E.A. 265/2022 IN E.P. 211/2019 IN O.S. 1180/2012 OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM