Holding

Section 47 CPC allows an executing court to entertain objections to a decree’s executability only when the decree is a nullity or suffers jurisdictional infirmity, not merely because it is erroneous in fact or law.

Summary

M/S. Brakewel Automotive Components (India) Pvt. Ltd. obtained a decree for recovery of a sum of money from P.R. Selvam Alagappan. The respondent filed an application under Section 47 of the Code of Civil Procedure, 1908, challenging the executability of the decree on grounds of alleged mis‑joinder of parties, fraud and collusion. The executing court allowed the application, a decision affirmed by the Madras High Court. The Supreme Court held that Section 47 permits only a narrow scrutiny of a decree’s executability on the basis of jurisdictional infirmity or voidness, not on errors of fact or law. Since the decree was not a nullity and did not suffer any jurisdictional defect, the respondent’s objections were dismissed and the decree was held executable. Consequently, the appeals were allowed and the execution proceedings were directed to continue.

Issues considered

What is the scope of Section 47 of the CPC, 1908 with respect to objections to the executability of a decree?
Can a decree that is erroneous in fact or law, but not void, be challenged under Section 47?
Does the respondent’s claim of mis‑joinder of parties and alleged fraud render the decree non‑est or inexecutable?

Legislation cited

Code of Civil Procedure, 1908s. 47

Subjects

Section 47 CPCexecution of decreejurisdictional infirmitydecree nullitycivil procedureenforceability of decreeerroneous decree

Judgment

[2017] 3 S.C.R. 681

M/S. BRAKEWEL AUTOMOTIVE COMPONENTS (INDIA) A
PVT. LTD.
v.
P. R. SELVAM ALAGAPPAN
(Civil Appeal Nos. 4313- 4314of2017) B
MARCH21,2017
[ARUN MISHRA AND AMITAVA ROY, JJ.]
Code of Civil Procedure, 1908:
s.47 - Scope and ambit of scrutiny under - Suit for recovery c
by appellant-plaintiff - Decreed by trial court - Execution
application by appellant - s.47 application by respondent-defendant
objecting to executability of the decree - Appellant questioned the
maintainability of such application by respondent - Executing Court
held the application to be maintainable - Order affirmed by High
Court - On appeal, held: The purview of scrutiny u!s. 47 qua a D
decree is limited to objections to its executability on the ground of
iurisdictional infirmity or voidness - Only a decree which is a nullity
can be the subject matter of objection u/s.47 and not one which is
erroneous either in !all' or on facts - Having regard to the contextual
facts and the objections raised by the respondent, no case made E
out to entertain the application u!s. 47 - Both the Executing Court
and the High Court, not only erred in construing the scope and
ambit of scrutiny u/s. 47 CPC, but also overlooked the fact that the
decree did not suffer either from any jurisdictional error or was
otherwise invalid in law.
s.47 - Executing Court - Power of - Discussed. F
··Allowing the appeals, the Court
HELD: 1.1 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
G
limited cases where the decree is by a court lacking inherent
jnrisdiction or is a nullity that the same is rendered 11011 est and is
thus inexecutable. An erroneous decree cannot be equaled with
one which is a nul!ity. In the present case, the objections raised
by the appellant even if considered to exist did not infest the
decree with any jurisdictional infirmity or reduce it to a nullity. H
681
682 SUPREME COURT REPORTS [2017] 3 S.C.R.

A There are no intervening developments as well to render the
decree inexecutable. [Para 19] [688-G-HJ
1.2 Section 47 of CPC mandates determination by an
executing court, of questions arising between the parties or their
representatives relating to the execution, discharge or
B 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.
(Para 20] (689-A-BJ ·
c
1.3 The purview of scruti.ny under Section 47 qua a decree
is limited to obje.ctions to its executability on the ground of
jurisdictional infirmity or voidness. Only a decree which is a
nullity can be the subject matter of objection under Section 47
and not one which is erroneous either in law or on facts. [Para
D 21) (689-C]
Vasudev Dha11jibhai Modi vs. Rajabhai Abdul Rehman
and Ors. [1971) 1 SCR 66 - relied on.
1.4 The powers of the Court under Section 47 are quite
different and much narrower than those in appeal/revision or
E
review. The exercise of power thereunder is microscopic and
lies in a very nurow 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 .
F 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 iu the case in hand.
[~ara 22] [690-B-C]

G Dhurandhar Prasad Singh vs. Jai Prakash University
and Ors. AIR 2001 SC 2552 : [2001) 3 SCR 1129 -
relied on.
Case Law Reference
(1971) 1 SCR 66 relied on Para 21
H [2001] 3 SCR 1129 relied on Para 22
MIS. BRAKEWEL AUTOMOTIVE COM~ONENTS (INDIA) 683
PVT. LTD. v. P. R. SELVAM ALAGAPPAN

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4313- A
4314 of2017.
From the Judgment and Order dated 03.06.2016 of the High Court
of Judicature at Madras in C.R.P. (NPD) No. 1499 of20I6 and CMP
No. 8225 of2016.
. J. S. Bakshi, Saurabh Ajay Gupta, Advs. for the Appellant. B

M. P. Parthiban, T. R. B. Sivakumar, Advs. for the Respondent.
The Judgment of the Court was delivered by
AMITAVA ROY, J. I. Leave granted.
2. The subject matterof impeachment is the order dated 3.6.2016
c
rendered in CRP (NPD) 1499 of2016 and CMP No. 8225 of2016 by
the High Court of Judicature at Madras, thereby rejecting the prayer of
the appellant/plaintiff/decree-holder (for short, hereinafter to be referred l_ .
'
to as "the appellant") to eschew evidence of the respondent/defendant/
judgment-debtor (for short, hereinafter to be referred to as "the D
respondent") in a proceeding under Section 47 of the Code of Civil
Procedure, 1908 (as amended) (hereinafter to be referred to as "CPC/
Code"), as well as to dismiss such application as not maintainable. By
the order impugned, the High Court has affirmed the determination
made to the same effect by the Executing Court.
E
3. We have he·ard Mr. J .S. Bakshi, learned counsel for the
appellant and Mr. M.P. Parthiban, learned counsel for the respondent.
4. The genesis of the present lis is traceable to Civil Suit (OS)
No. 1690 of 20 I 0 instituted before the High Court of Delhi at New
Delhi by the appellant against the respondent arrayed as the proprietor F
of M/s. Kargaappa Auto Products and M/s Paans Auto Products for
recovery of Rs. 20,94,953/- arising from business transactions between
the parties. While the appellant described itself to be a company
registered under the Companies Act, 1956 and engaged in the business
of manufacture and sale of auto components/parts, the respondent
was introduced as the proprietor of the afore-named proprietorship firms.
G
. According to the appellant, the respondent approached it in the month
of November, 2002 for a business deal and on the basis of the bargain
entered into, it supplied auto components and parts to the respondent, . 1
as per the specifications mentioned and raised bills in connection
therewith. H
684 SUPREME COURT REPORTS [2017) 3 S.C.R.

A 5. As per the books of account maintained in the regular course
of business, at the relevant time i.e. 15.10.2007, Rs. 8,01,7081- was due
and outstanding against the respondent in the accounts of Mis. Kargaappa
Auto Products and Rs. 4,93,9521- as on 6.6.2008, in the account of Ml
s. Paans Auto Products, thus totalling Rs. 12,95,6601-. As this amount
was not paid inspite of repeated demands, and the ultimate notice dated
B
28.12.2009, addressed by the appellant to the respondent, the suit was
filed for realisation of the aforementioned amount together with interest
@ 24% p.a. for an aggregate sum of Rs. 20, 94,9531-.
6. Though on the receipt of the summons in the suit, the respondent
arranged for his representation, he eventually failed to submit his written
c statement and accordingly, his defence was struck off vi de order dated
20.10,2011, in view of his persistent default to that effect. Subsequent
thereto, the appellant filed the affidavit of one of its directors in
endorsement of its pleaded case, who proved, amongst others, the
copies of various invoices authenticating the supply of goods to the
D 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 Rs. 18,95,077I- by allowing
the interest@ 18% p.a. in lieu of24%, as claimed.
E 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
F 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-joinderl
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 Mis. Kargaappa Auto Products and that instead his wife
G Mrs. A. Kamalla being so was the proper and necessary party and that
in view of this-defect, the suit was liable to be dismissed. He also pointed
out that the name of this firm is Mis. Karpaga Auto Products and not
Mis. KargaappaAuto Products, as recited in the plaint. The respondent
alleged fraud as well and contended that the appellant was guilty of
suppression of material facts of rejection of its goods. Further, he also
H
M/S. BRAKEWEL AUTOMOTIVE COMPONENTS (INDIA) 685
PVT. LTD. v. P. R. SELVAM ALAGAPPAN [AMITAVA ROY, J.]

alleged collusion and connivance between his counsel and the appellant A
for which the former deliberately abstained from taking necessary steps
to ensure his effective representation in the suit, thus resulting in the ex-
parte decree.
8. He pleaded that on receiving the summons in the suit, necessary
instructions were conveyed to his counsel at Delhi to appropriately contest B
the proceeding, but the latter refrained from either filing the written
statement or frt>m taking necessary steps resulting in his default for
which ultimately, the suit was decreed. According to him, though he
was in touch with his counsel at Delhi through his counterpart at Chennai,
he was being given the impression that there was no progress in the suit
and that he would be duly infon11ed about any substantial developme.~t c
therein whenever the same would oq:ur. The respondent contended
that it was in February/March, 2014, when he and his local counsel
grew suspicious of the evasive replies given by his counsel at Delhi, that
the records of the suit were consulted, which revealed that his defence
had been struck off on 20.10.2011 and the suit had been decreed on D
16.12.2011. The records ofthe suit also divulged thatthough an opportunity
to him for cross-examination of the witnesses by appellant had been
afforded, it was not availed of due to the sheer dereliction of the
·professional duties of his counsel.
9. -Noticeably, the respondent in his review application _disclosed E
that his said counsel however did prefer an appeal against the ex-parte
decree, which eventually was returned in view of the attendant defects. "
The appeal was however not re-filed and that in the meanwhile, a
complaini had been lodged against the counsel with the Bar Councilof
Tamil Nadu at Channai, was mentioned as well.
F
10. It is worthwhile to note that no interim order was passed on .
this review application, which eventually was dismissed on 15.4.2015
on account of unexplained 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 G
under Section 47 ofCPC to resist the execution of the decree. Suffice
it would be to state that the demurrals in these pleadings are in suJistance
a replication of those narrated in the review application and, therefore·
are not being re-traversed.
, 12. In refutatioi1, the appellant did file a ~ommon countei~nffidavit
H

., ....
686 SUPREME COURT REPORTS (2017] 3 S.C.R.

A 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 ofRs. 18,95,077/- along with pendente
. B lite and future interest @ 18% p.a. Apart from high Iighting 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 val.id in law, the appellant maintained that the suit
had been filed against the respondent, as he represented both the firms
C ·and had participated in the transactions in that capacity for which
either the mistake in the name ofM/s. Kargaappa Auto Products instead
of Mis Karpaga Auto Products or non-impleadment of his wife as the
sole proprietress thereof was wholly inconsequential qua the aspect of
executability of the decree. The allegation of suppression ofany material
fact, as alleged was denied. The accusation of collusion between the
D
learned counsel for the respondent and the appellant was stoutly denied
as well. It was pointed out that the fact of filing of appeal preferred by
the same counsel against the decree belied the allegation of dereliction
of duty as unfounded. Underlining the inexplicable delay and inaction of
three years on the part of the respondent in filing the review petition, it
E was contended that the resistance to the executing proceedings was
only with the objective of protracting the proceeding~to his advantage
on flimsy and frivolous grounds.
· 13. The respondent next filed an affidavit on the same Iin es as
narrated in his counter and the application under Section 47 CPC and
F sought to supplement the same by producing documents to that effect
by way of oral and documentary testimony of the pleaded facts. The
appellant in its rejoinder did object to this initiative on the part of the
respondent as impermissible, being beyond the purview of Section 47
CPC and prayed for obliteration of such evidence. The appellant pleaded
that after the counter-affidavit had been filed by the respondent in the
G execution proceedings, arguments on behalf of the decree-holder were
heard and though the proceedings were deferred for the arguments on
behalf of the respondent, an application by him under Section 47 CPC
was filed, the maintainabilify whereof was questioned by the appellant
and that it was at that belated stage that the respondent sought to introduce
H the documentary evidence.
M/S. BRAKEWEL AUTOMOTIVE COMPONENTS (INDIA) 687
PVT. LTD. v. P. R. SELVAM ALAGAPPAN [AMITAVA ROY, J.] .

14. The Executing Court however by its order dated 8.2.2016, A
dismissed the objection of the appellant by taking note principally of tlie
fact that the respondent was not the proprietor~ofKarpagaAuto Products
and that it was necessary to examine as tbhow he was related to the
said proprietorship firm, a question to be decided in the proceedings
under Section 47 CPC.
B
, IS. By the impugned order, the High Court has affirmed th.is
determination 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_ C
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 D
fac.:ts 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 Ii mini and do not warrant any verification E
thereof. Not only are these objections frivolous on the face ofrecord,
these have been resorted to only for protracting the execution
proceedings. He urged that the impugned order has the effect of
going heh.ind and reopening the decree, which is impermissible in law.
According to him, neither the decree suffers from any jurisdictional '
error nor is a nullity and is thus executable in law. F

17. In reply, the learned counsel for the respondent has insisted
that in the teeth of incorrect name of one of the firms and non-
representation thereof by its rightful proprietor, the decree which is
composite in nature, has been rendered inexecutable. He further argued
that as the decree is an yield of fraud and collusion between the learned G
counsel for the respondent and the appellant, it is non est in law and thus
the impugned order which only permits an inquiry in these aspects, is
well within the purview ofSection 47 CPC and therefor no interference
therewith is called for.
H
SUPREME COURT REPORTS [2017] 3 S.C.R.

A 18. The materials on record and the arguments based thereon
have received our due consideration. To recapitulate, the plaint discloses
that the respondent had represented before the appellant to be authorised
to act on behalf of both the firms and in that capacity had participated in
the transactions that_followed. In that perspective, even assuming that
the name of one of the firms was wrongly mentioned and that in fact,
B
it is the wife of the respondent, who is the proprietress thereof, with
whom there is no conflict ofinterest, these in our comprehension per se,
would not render the decree void or inexecutable. Such errors, even if
exist, would not infest the decree with any jurisdictional infirmity or
reduce it to a nullity. Noticeably, there is no dispute with regard to the
c identity of the firms involved and their representation by the respondent
in the suit transactions. The allegation of fraud and collusion between
the learned counsel for the respondent and the appellant is visibly self-
serving, omnibus, speculative and unauthentic and cannot therefore,
after so many years: ipso facto render the decree invalid on account
thereof. Visibly, the respondent had been the center figure in all the
·D
transactions between the parties on behalf of the firms, as stand proved
in the suit and the resistance to the execution of the decree is neither QI! ,
behalf of Mis. Kargaappa Auto Products/Mis. Karpaga Auto Products
nor its proprietress, his wife contending that the decree is neither binding
on the firm nor on her. For all practical purposes, the said firm is still
E being represented by the respondent in the subsisting proceedings. The
sequence of events disclose that the suit had been instituted in the year
20 I 0 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
F
though lodged in the year 2014 has not seen the fruit of the decree as on
da!e. 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
G 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.
MIS. BRAKEWEL AUTOMOTIVE COMPONENTS (INDIA) 689
PVT. LTD. v. P. R. SELVAM ALAGAPPAN [AMITAVA ROY, J.]

20. As it is, Section 47 of the Code mandates determination by A
an executing court, questions arising between the parties or their
representatives relating to 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
B
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 4 7 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 Dlumjib//{/i Modi vs.
c
Rajabhai Abdul Re/mum and others 197 l (I) 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: D
"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 E
even ifit 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 prince without a certificate, is sought to be executed an F
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 it.s validity
may be raised in an execution proceeding ifthe 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 G
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
ofabsence ofjurisdiction." H
690 SUPREME COURT REPORTS [2017] 3 S.C.R.

A 22. Though this view has echoed time out of number in similar
pronouncements of this Court, in Dhurandlwr Prasad Singh vs. Jai
Prakash University and otlters, AIR 200 I 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
B
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 initlo 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
c 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.
D 23. Having regard to the contextual facts and the objections raised
by the respondent, we ai'e of the unhesitant opinion that no case has
been made out to entertain the remonstrances against the decree or the
application under Section 47 CPC. Both the Executing Court and the
High Court, in our comprehension, have not only erred in construing the
scope and ambit of scrutiny under Section 47 CPC, but have also
E overlooked the fact that the decree. does not suffer either from any
jurisdictional error or is otherwise invalid in law. The objections to the
execution petition as well as to the application under Section 47 CPC
filed by the respondent do not either disclose any substantial defence to
the decree or testify the same to be suffering from any jurisdictional
F infirmity or invalidity. These are therefore rejected.
24. 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
G with utmost expedition. No costs.

Divya Pandey Appeals allowed.