Back
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.S. Sundar, J.
S. Muthu Narayanan – Appellant
Versus
Paulraj Naicker – Respondent
Civil Revision Petition (NPD) No. 885 of 2013 and Miscellaneous Petition No. 1 of 2013
Decided On : 12-09-2018
CPC - Civil Revision Petition - Section 47 - Summary Judgment and decree in a suit for specific performance challenged as null and void in execution proceedings - Court held that procedural irregularities in the judgment and decree do not render it null and void - Executing Court cannot go beyond the decree and challenge its validity under Section 47 CPC - Previous dismissal of Civil Revision Petition by the High Court upheld - Civil Revision Petition dismissed
Fact of the Case:
The defendants filed a Civil Revision Petition challenging the order dismissing their petition to declare the judgment and decree in a suit for specific performance as null and void. They contended that the trial Court granted the decree without framing the issues regarding readiness and willingness, and that the suit property was not properly described with reference to boundaries.
Finding of the Court:
The Court found that the judgment and decree in the suit for specific performance, though suffering from procedural irregularities, were not null and void. It held that the Executing Court cannot go beyond the decree and challenge its validity under Section 47 CPC. The previous dismissal of a Civil Revision Petition by the High Court was upheld, and the Civil Revision Petition was dismissed.
Issues: Challenging the validity of the judgment and decree in a suit for specific performance in execution proceedings under Section 47 CPC
Ratio Decidendi: The Court held that procedural irregularities in the judgment and decree do not render it null and void. It emphasized that the Executing Court cannot go beyond the decree and challenge its validity under Section 47 CPC.
Final Decision: The Civil Revision Petition was dismissed, and the order passed by the trial Court was confirmed.
Key Points: - Procedural irregularities in a judgment and decree do not render it null and void; Executing Court cannot go beyond the decree to challenge its validity under Section 47 CPC. (!) - The judgment/ decree in a suit for specific performance can be challenged under Section 47 CPC in execution proceedings, but such challenge must be within the permissible scope and cannot attack merits; the trial court’s failure to frame issues or describe boundaries was noted but not deemed void. (!) (!) - A judgment must contain a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision (as per Order 20 Rule 4(2) and Section 2(9)); ex-parte judgments must also satisfy these requirements for validity and appealability. (!) (!) (!) (!) - A decree passed by a court without jurisdiction is void ab initio and can be challenged; but irregular or wrongful decrees or orders by a court of competent jurisdiction are not necessarily null and void and may be subject to appeal or other proper remedies. (!) (!) (!) - Ex-parte decrees: remedies include setting aside under Order 9 Rule 13 or appealing under Section 96(2), with judgments needing to be in conformity with CPC requirements for maintainability. (!) - The executing court cannot treat a judgment as nullity or ignore valid decrees on grounds of errors that are not void ab initio; if there is an error of law, correction follows CPC procedures, not collateral challenge through execution. (!) (!) (!) (!)
1. The defendants 4 to 8, in the suit in O.S. No. 110 of 2000 on the file of the Sub-Court, Sankarankovil, are the petitioners in this Civil Revision Petition.
2. This petition has been filed as against the order dismissing the petition filed by the revision petitioners in E.A. No. 126 of 2012 in E.P. No. 40 of 2006 in O.S. No. 110 of 2000 under Section 47 CPC.
3. The brief facts that are necessary for the disposal of this Civil Revision Petition are as follows:
3.1. The respondent herein, as plaintiff, filed the suit in O.S. No. 110 of 2000 before the Sub-Court, Sankarankovil, for specific performance of an agreement of sale deed, dated 08.05.1993 and for other consequential reliefs. The mother of the petitioners is the second defendant in the suit. The suit was decreed ex-parte on 11.11.2002. The revision petitioners herein have earlier filed a petition to set aside the ex-parte decree along with the petition to condone the delay of 1892 days in filing the petition to set aside the ex-parte order dated 11.11.2002. The petition to condone the delay in I.A. No. 185 2008 in O.S. No. 110 of 2000 was dismissed by the Sub-Court, Sankarankovil. As against the same, the revision petitioners preferred a Civil Revision Petition earlier before this Court in C.R.P. (MD) No. 2007 of 2011. The said petition was also dismissed by this Court by order dated 23.11.2011 and this Court categorically held that there is no proper explanation for the huge delay of 1892 days. Even in the earlier revision petition, it was contended by the present revision petitioners that the sale agreement is not an executable agreement and that the decree passed in the original suit in O.S. No. 110 of 2000 is totally illegal. It was submitted before this Court that the revision petitioners have also advanced arguments on the merits of their defence and this Court after considering all the contentions of the revision petitioners, dismissed the revision petition.
3.2. Thereafter, the revision petitioners filed a petition in E.A. No. 126 of 2012 in E.P. No. 40 of 2006 in O.S. No. 110 of 2000 under Section 47 CPC to declare the judgment and decree in the suit in O.S. No. 110 of 2000, dated 11.11.2002, as null and void and prayed to dismiss the execution petition on the ground that the trial Court has granted the decree without framing the issues regarding the readiness and willingness. It was further stated that the Counsel for the first defendant reported no instructions and that the trial Court without ordering notice to the first defendant, passed an order after setting the first defendant ex-parte. It is also contended that the trial Court, before granting a decree for specific performance, has not given any reason for holding that the plaintiff has proved his case. The revision petitioners also contended that the suit property has not been properly described with reference to boundaries and that the execution petition filed, as such, is not executable. Since the decision of the trial Court is not on merits and contrary to the settled principles of law, it is further contended that the judgment and decree in the suit for specific performance is not executable. However, the trial Court dismissed the petition in E.A. No. 126 of 2012 merely on the ground that the petitioner earlier filed petition under Order 9 Rule 13 CPC to set aside the ex-parte decree along with the petition in I.A. No. 185 of 2008 in O.S. No. 110 of 2000 and the same was already dismissed and that the revision petitioners could not now agitate the issue on the merits of the case. After referring to Section 47 CPC and few judgments relied upon by the learned Counsel for the respondent, the trial Court found that the Executing Court cannot go beyond the decree and challenge the validity of the decree in a petition filed under Section 47 CPC. Finally, in view of the fact that the Civil Revision Petition filed by the revision petitioner earlier in C.R.P. (MD) No. 2007 of 2011 was dismissed by thi
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
