Full Judgment Text
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 20 March, 2025
+ CM(M) 524/2025 & CM APPL. 16348-16349/2025
JAYA DEVI .....Petitioner
Through: Mr. Suraj Yadav, Advocate.
versus
BHUPESH KUMAR & ANR. .....Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE MANOJ JAIN
J U D G M E N T (oral)
1. This Court is conscious of the limited scope and ambit of
appreciation, while dealing with an application filed under Section 47
CPC.
2. It is settled position of law that the Executing Court can allow
objection under Section 47 CPC only if it is found that the decree is
void ab initio or nullity or if it is not capable of execution under the law.
3. Reference in this regard be made to one recent judgment of
Hon’ble Supreme Court of India in Pradeep Mehra vs. Harijivan J.
Jethwa (Since deceased Thr. LRs) & Ors , 2023 SCC OnLine SC 1395.
Para 10, 11 and 12 of said judgment read as under:-
“ 10. A bare perusal of the aforesaid provision shows that all
questions between the parties can be decided by the executing court.
But the important aspect to remember is that these questions are
limited to the “execution of the decree”. The executing court can
never go behind the decree. Under Section 47, CPC the executing
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court cannot examine the validity of the order of the court which had
allowed the execution of the decree in 2013, unless the court's order
is itself without jurisdiction. More importantly this order (the order
dated 12.02.2013), was never challenged by the tenants/judgment
debtors before any forum.
11 . The multiple stages a civil suit invariably has to go through
before it reaches finality, is to ensure that any error in law is cured
by the higher court. The appellate court, the second appellate court
and the revisional court do not have the same powers, as the powers
of the executing court, which are extremely limited. This was
explained by this Court in Dhurandhar Prasad Singh v. Jai Prakash
University, (2001) 6 SCC 534, in para 24, it had stated thus:
“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 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
provision of law or the law was promulgated making a decree
inexecutable after its passing.”
12 . This Court noted further:
“………. 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 proceeding 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 proceeding or colluded with the
adversary or any other ground permissible under law.”
4. Petitioner herein suffered a decree.
5. The suit was filed by Sh. Bhupesh Kumar and Sh. Pawan Kumar
and they sought for permanent injunction and specific performance of
Agreement to Sell.
6. Since defendant therein neither appeared despite summons nor
did she file any written statement, she was proceeded against ex-parte
vide order dated 02.12.2021.
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7. The decree was, eventually, passed against her on 12.09.2022.
8. She, subsequently, filed applications under Order IX Rule 13
read with Section 151 CPC and Section 5 of Limitation Act and her
such applications were considered by learned Trial Court on
06.02.2024. Learned Trial Court, while observing that she has not
been able to show sufficient cause for her non-appearance despite
receiving summons as well as Court notice, was constrained to dismiss
her abovesaid applications.
9. Admittedly, such order has not been assailed by her, so far.
10. Instead, she filed an application under Section 47 CPC, wherein,
it seems that she has reiterated the fact that she was never served with
any summons. It was also attempted to be argued by her that though
plaintiff had relied upon one agreement but he did not prove the same
by examining the witness, related to execution of such agreement.
11. Learned Trial Court observed that the plea taken by her in her
abovesaid application under Section 47 CPC “ did not relate to the
execution, discharge or satisfaction of the decree ” and, therefore, while
relying upon Pradeep Mehra ( supra ), it dismissed the abovesaid
application.
12. It is settled position of law that the question raised under Section
47 CPC is limited to “ execution of the decree ” and the Executing Court
cannot even go beyond the decree. It cannot even examine the validity
of the order, unless the order is without jurisdiction or, for that matter,
the decree is void ab initio and nullity. No such fact has been put
forth, either before the learned Trial Court or before this Court. Mere
allegation that the witnesses of the agreement in question were not
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examined, would not mean that the decree has to be taken as nullity.
Moreover, for the reasons best known to the petitioner, she has not even
challenged the order dated 06.02.2024 whereby her application under
Order IX Rule 13 CPC was dismissed by learned Trial Court.
13. This Court, therefore, does not find any merit or substance in the
present petition.
14. The petition, along with pending applications, is accordingly
dismissed.
(MANOJ JAIN)
JUDGE
MARCH 20, 2025/st/pb
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By:SONIA THAPLIYAL
Signing Date:21.03.2025
17:59:45