IMPORTANT POINT
Question under Section 47 of CPC has to be considered only on limited ground where a decree suffered from jurisdictional error/infirmity or is void and a nullity. An erroneous finding cannot be disturbed in execution proceedings and such a recourse is not available under Section 47 of CPC.

ORDER

Sachin Shankar Magadum, J.—The captioned civil revision petition is filed by the decree holder challenging the order of the executing court passed on I.A.No.3 filed under Section 47 of CPC.

2. The present case on hand is a helpless decree holder who is made to run pillar to post to enforce the decree which is in his favour passed in O.S.No.69/1997. The present petitioner filed a money suit seeking recovery of a sum of Rs.65,340/-. The respondents/judgment debtors did not contest the proceedings. The trial court proceeded to pass an ex-parte decree. The present respondent/judgment debtors filed an application under Order 9 Rule 7 of CPC questioning the order placing him ex-parte pending suit. The said application on enquiry was rejected. The respondents/judgment debtors did not challenge the order passed by the learned Judge on an application filed under Order 7 Rule 7 of CPC.

3. The learned Judge has proceeded to examine the contentions of the present petitioner/decree holder and accordingly decreed the suit directing the present respondents to pay the amount. It is borne out from the records that respondents did not challenge the judgment and decree passed in O.S.No.69/1997. Since the decree passed in O.S.No.69/1997 has attained finality, the present petitioner initiated execution proceedings for recovery of decreetal amount by filing E.P.NO.49/2002. The judgment debtors have resisted the execution proceedings by filing I.A.No.3 under Section 47 of CPC. The executing court without calling upon the decree holder to produce the certificate of reconstitution has partly allowed the application holding that, in the absence of reconstitution, the petitioner was not entitled to file a suit seeking recovery of money. Accepting this defence, the executing court has allowed the application in part and dismissed the execution petition.

4. The learned counsel for the petitioner/decree holder would vehemently argue and contend before this Court that in fact, there was reconstitution of a firm and consequentially the same was registered on 04.06.1987. This court by order dated 16.10.2020 directed the present petitioner to produce the said certificate. Learned counsel for the petitioner has produced the same along with synopsis dated 15.01.2021. The said certificate of registration is taken on record.

5. Now this court would deal with the controversy arising in the petition in two folds. Insofar as the first part of the argument is concerned, learned counsel for the petitioner/decree holder would submit to this court that the executing court erred in venturing into holding an enquiry under Section 47 of CPC and as such, the same is contrary to the settled proposition of law. To buttress his arguments, he placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of Brakewel Automotive Components (India) Private Limited vs. P.R. Selvam Alagappan, (2017) 5 SCC 371. The Hon’ble Apex Court has dealt with the said issue and was of the view that question under Section 47 of CPC has to be considered only on limited ground where a decree suffered from jurisdictional error/infirmity or is void and a nullity. In the present case on hand, the judgment debtors are virtually allowed to set up a defence which was available to them in the original suit. Even for the sake of arguments, if this court were to accept that the finding recorded by the court below in O.S.No.69/1997 is palpably erroneous, it is trite law that an erroneous finding cannot be disturbed in the execution proceedings and such a recourse is not available under Section 47 of CPC. This material aspect is not dealt by the executing court. The finding recorded by the executing court on I.A.No.3 runs contrary to the settled proposition laid down by the Hon’ble Apex Court in the judgment cited supra. In that view of the matter, I find that there is some force in the submission made by the learned counsel for the petitioner/decree holder.

6. The second limb of the arg