M/s. General Supply Syndicate v. M/s. Sree Lakshmi Ganesh Enterprises

Order

This is a revision at the instance of the decree holder aggrieved by the impugned order of the executing Court i.e. I Additional Junior Civil Judge, Rajahmundry in E.P.No.369 of 1997 in O.S.No.2099 of 1991 dated

07.01.2003.

2. The facts, in brief, are as follows. (a) The petitioner herein filed O.S.No.2099 of 1991 before the VII Assistant Judge, City Civil Court, Hyderabad seeking a decree for Rs.30,262/- together with future interest at 24% per annum from the date of suit till the date of realization and for costs. The said suit was filed against the respondent herein, who is described as, “M/s. Sree Lakshmi Ganesh Enterprises, A Firm carrying on business at D.No.17-1-49, Main Road, Seethampet, Rajahmundry (A.P.) 533 104 Per Proprietor S.S. Rama Rao.” In the said suit a written statement was filed by the aforesaid respondent but later the counsel reported no instructions and on the basis of the evidence of P.W.1 and Exs.A1 to A15 marked on behalf of the petitioner,

the defendant was set ex parte and later the suit was decreed as prayed for. The said decree was not challenged by the respondent in appeal and as such, attained finality. The petitioner got the said decree transferred to the District Court, Rajahmundry and further vide application in E.A.No.233 of 1996 filed before the learned I Additional District Judge, Rajahmundry sought transfer of the decree to the executing Court i.e. I Additional District Munsif, Rajahmundry. Accordingly, as per the orders of the learned I Additional District Judge, the decree was transferred to the said transferee Court. The said Court is now re-designated as I Additional Junior Civil Judge’s Court, Rajahmundry. (b) Petitioner filed EP.No.369 of 1997 seeking recovery of Rs.81,332/- as on 20.08.1997, in terms of the decree, under Order XXI Rule 37 of Civil Procedure Code. The respondent herein filed a counter to the said EP contending, inter alia, that the EP is wrongly filed against the person, who is said to represent the respondent and that the said person shown as representing the respondent is not liable for the decretal amount, as he has no relation or locus standi in the EP. It was alleged that the respondent firm does not belong to him and in fact, one Smt. S. Annapurna Devi is the proprietor and the said Annapurna Devi is the wife of Mr. S.S. Rama Rao, who is shown as representing the respondent firm. It was also alleged that the said firm is not existing in 1991 and the decree obtained by the petitioner is wrong and the decree itself being void, is not binding and in-executable against S.S. Rama Rao. In substance, therefore, it was alleged that S.S. Rama Rao, is not connected with M/s. Sree Lakshmi Ganesh Enterprises and consequently, the EP is liable to be dismissed and hence, S.S. Rama Rao, the alleged J.Dr. prayed the honourable Court to dismiss the EP in the interest of justice.

3. The executing Court examined the petitioner/decree holder as P.W.1 and two witnesses were examined on behalf of the respondent viz. R.Ws.1 and 2. While R.W.1 is the person who is said to represent the respondent has deposed that his wife namely, Annapurna Devi, has been the proprietrix of the respondent firm and has been running the business in the name of “Bangalore Ayyangar’s Bakery”. R.W.2 is the official of the sales tax department, who produced and marked Exs.B2 to B4, which are: copy of receipt of payment of money towards Registration/Renewal issued by the Assistant Labour Officer with regard to respondent firm; copy of form-D1 i.e. Certificate of Registration with regard to respondent firm issued by the Assistant Commercial Tax Officer, Aryapuram, Rajahmundry and copy of certificate showing that Smt. S. Annapurna Devi did business in Electricals & Electronics in the name and style of Sreelakshmi Ganesh Enterprises respectively. Ex.X1 is the Xerox copy of duplicate licence Form D-1 i.e. Certificate of Registration with regard to J.Dr. firm and Ex.X2 is the Xerox copy of certificate showing that Smt. S. Annapurna Devi did business in Electricals & Electronics in the name and style of Sreelakshmi Ganesh Enterprises.

4. Based on the said evidence, the executing Court came to the conclusion that R.W.1 has no financial interest or any formal role in the respondent firm, which is apparently owned by Smt. S. Annapurna Devi and consequently, there is no justification for the petitioner to proceed against R.W.1. The Court, further, found that there is no evidence to show that S.S. Rama Rao (R.W.1) the proprietor of the respondent firm and consequently, the petitioner cannot proceed against him and the EP itself was dismissed. Questioning the said order, the present revision is filed.

5. Learned counsel for the petitioner submits that the impugned order is not sustainable, as the executing Court has gone behind the decree and has reached conclusions contrary to the decree. He also submitted that similar objection was raised by the respondent in the suit itself and has relied upon the written statement filed in the suit to contained that the defendant had admitted that an amount of Rs.17,000/- is due and payable against the suit claim and that there are several averments in the written statement that defendant admits delivery of goods from the plaintiff, regarding quality of goods supplied by the plaintiff to the defendant etc. He, therefore, states that the plea raised by the respondent is only with a view to defeat the execution and unfortunately, the executing Court has ignored the decree and rejected the execution petition erroneously. He relied upon a decision of the Privy Council in MALKARJUN BIN SHIDRAMAPPA PASARE v. NARHARI BIN SHIVAPPA[1] and decisions of the Supreme Court in BALVANT N. VISWAMITRA v. YADAV SADASHIV MULE[2] a n d VASUDEV DHANJIBHAI MODI v. RAJABHAI ADBUL REHMAN[3].

6. Learned counsel for the respondent, on the contrary, has contended that the frame of the suit itself was erroneous, as R.W.1, who had nothing to do with the respondent firm, is shown as proprietor and decree is obtained. It is contended that merely because he is the husband of the proprietrix the proceedings cannot be taken against him and in support of the said proposition reliance is placed upon short note of a decision of this Court in A.S.No.256 of 1978 dated 02.07.1986 in K. KASULU v. THE COMMISSIONER, ENDOWMENTS DEPARTMETN[4] to contend that husband is not an implied agent of the wife unless there is specific authorization and mere marital relationship is not sufficient to establish husband’s agency. With regard to powers of the executing Court reliance is placed upon another short note of a decision of Orissa High Court in SANKARSAN PRUSTY v. BANSIDAHR PRUSTY[5] for the proposition that where there is no ambiguity in terms of a decree, executing Court is bound to interpret it according to its plain meaning and in case of ambiguity, executing Court may refer to judgment and pleading to ascertain meaning of decree. Learned counsel has also relied upon another decision of the Supreme Court in N.S.S. NARAYANA SARMA v. M/s. GOLDSTONE EXPORTS (P) LTD.[6]

7. Learned counsel for the respondent contended that when the trial Court passed an ex parte decree on 01.03.1996, the respondent had filed an application in I.A.No.55 of 1998 seeking condonation of delay of 664 days in filing petition to set aside the said ex parte decree. The trial Court dismissed the said petition by order dated 30.07.1999, whereupon a revision petition being CRP.No.4474 of 1999 was filed before this Court. The said revision petition was dismissed by this Court at the admission stage but an observation was made based upon which the respondent justifies their present objection in the EP.

8. For the sake of convenience, the order of this Court dismissing the CRP is extracted in entirety as under: “I see no illegality or error of jurisdiction in the impugned order refusing to condone the delay of 664 days in filing the petition to set aside the exparte decree dated 01.03.1996. The reasons mentioned are apparently vague and hence I see no ground to interfere under Section 115 of the Civil Procedure Code. However, it is brought to my notice by the learned counsel for the petitioner that in the guise of execution of decree, the petitioner is seeking arrest of the petitioner’s husband by name S.S. Rama Rao, whose name is wrongly mentioned as proprietor of the firm in the suit. This objection can be raised in the execution proceedings. With the above observations this revision petition is dismissed. No costs.” Learned counsel, therefore, relies upon the last sentence in the aforesaid order and states that the respondent was justified in filing counter before the executing Court and the impugned order, accordingly, was rightly passed.

9. In the circumstances, the following question arises for consideration:

1. Whether the executing Court can go behind the decree and give a finding that the respondent firm against whom the decree is passed is represented by some other person than the person shown in the decree as proprietor?

10. It is not in dispute and a certified copy of the decree was produced before me, which shows that the decree is passed against the respondent as extracted in the opening paragraphs of this judgment. A copy of the written statement filed by the said J.Dr. – respondent is also produced in the material papers where in para 2 it is stated as follows: “The statement in paragraph 2 of the plaint is not correct. Sri S.S. Rama Rao is not proprietor of M/s. Sri Lakshmi Ganesh Enterprises, he is only manager of the said business concern. His wife by name Smt. S. Annapurna Devi is the proprietor of the same.” Apart from taking other pleas such as territorial jurisdiction etc. the written statement shows and proceed as if, defendant has received the goods by taking delivery of the goods from the transport company but the goods were found of inferior quality and the defendant received many complaints from the customers and that the plaintiff’s agents negotiated with the defendant and made several demands for payment and as per the accounts, the defendant is due and payable only an amount of Rs.17,000/- to the plaintiff. Further, the defendant did not participate in the suit thereafter and on the basis of evidence of the plaintiff the suit was decreed as prayed for. The said decree is not challenged in appeal and the application of the respondent seeking condonation of delay to set aside the ex parte decree was dismissed by the trial Court and this Court refused to interfere with the same in CRP.No.4474 of 1999 by order dated 22.01.2000. The decree, therefore, having attained finality, the petitioner took steps to put it to execution and filed EP before the executing Court under Order XXI Rule 37 CPC. The decree having attained finality, the contention of the respondent with respect to their claim that Mr. S.S. Rama Rao was not proprietor and Smt. S. Annapurna Devi was the proprietrix was not substantiated in the suit and stood rejected by implication and the suit came to be decreed as prayed for. Question, therefore, is as to whether it is open for the respondent to once again raise the self-same ground before the executing Court and whether the executing Court can go behind the decree and give a contra finding on the said aspect.

11. It is now well-settled that the executing Court cannot go behind the decree even if it is erroneous on law and facts, as per the decision of the Supreme Court in VASUDEV DHANJIBHAI MODI’s case (3 supra) and the relevant paras 6 and 7 are extracted as under: “6. 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.

7. 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 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. In Jnanendra Mohan Bhaduri and Anr. v. Rabindra Nath Chakravarti L.R. 60 Ind App 71 = (AIR 1933 PC 61)the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction.”

12. It is nobody’s case that the Court which passed the decree in the present case did not have jurisdiction nor the decree can be said to be nullity on any ground. Even if it is assumed that there is an error in showing R.W.1 as proprietor of the respondent firm instead of his wife as proprietrix, mere irregularity or wrong decree or order are not necessarily null and void as held by the Supreme Court in BALVANT N. VISWAMITRA’s case (2 supra) in paras 13 and 14 as follows: “13. … A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the common of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings." (emphasis supplied)

14. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings.”

13. Learned counsel for the petitioner has also relied upon a passage the decision of the Privy Council in MALKARJUN BIN SHIDRAMAPPA PASARE’s case (1 supra). The said passage is as follows: “The Code goes to say that the Court shall issue a notice to the party against whom execution is applied for. It did issued notice to Ramalingappa. He contended that he was not the right person, but the Court, having received his protest, decided that he was the right person, and so proceeded with the execution. In so doing the Court was exercising its jurisdiction. It made a sad mistake it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed. The real complaint here is that the execution Court construed the Code erroneously. Acting in its duty to make the estate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it. But to treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law. Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possible judge of such mater, even if he knows the facts; and that if he is to be held bound to injure into the accuracy of the Court’s conduct of its own business, no purchaser at a Court sale would be safe. Strangers to a suit are justified in believing that the Court has done that which by the directions of the Court it ought to do.”

14. In the light of the above legal position, therefore, when it is settled that the executing Court cannot go behind a decree and is bound to execute the decree as its is, the contention of the respondent based upon the observation this Court in CRP.No.4474 of 1999 extracted above is clearly unsustainable. The said observation was made by this Court at the admission hearing of the CRP of the respondent and the petitioner had no opportunity to bring it to the notice of this Court the real facts appearing from the record. It is, further, evident that though the suit and the decree was against the firm represented by Mr. S.S. Rama Rao, the said CRP was filed by the firm represented by Smt. S. Annapurna Devi. This Court was not apprised of the actual cause title, pleading and the decree of the Court wherein the very same objection of the respondent was not accepted by the trial Court while passing the decree. The observation of this Court was, thus, made on the representation of the respondent that they may raise the objection in the execution proceedings. It is, however, always implied that the executing Court would deal with such an objection, if raised, in accordance with law. The attempt of the respondent to interpret the said observation de-horse the law is impermissible. Unfortunately, the executing Court was persuaded to accept the said objection of the respondent under the impugned order and whereby the decree obtained by the petitioner is now rendered in-executable. This Court cannot countenance such a situation where a decree which has attained finality is rendered in-executable without declaring the said decree as void.

15. More importantly, the executing Court has lost sight of the fact that the decree is passed against M/s. Sri Lakshmi Ganesh Enterprises proprietary firm, which even otherwise is bound by the decree and the execution taken out by the petitioner against the said firm cannot be nullified at the instance of the respondent, which does not dispute the transactions between the petitioner and the respondent and admits liability to the extent of Rs.17,000/- but still opposes the execution proceedings by raising a contention that somebody else is the proprietrix and not the person shown in the decree. The impugned order is, therefore, even otherwise not sustainable. The decisions relied upon by the learned counsel for the respondent have no application to the facts and circumstances of this case, as neither the issue relating to implied authority of husband arises in the matter nor there is any ambiguity in terms of the decree. The decision in N.S.S. NARAYANA SARMA’s case (6 supra) has also no application, as the proposition laid down therein is with respect to the scope of Order XXI Rules 97 and 99 CPC and it is held that the executing Court is competent to consider all questions raised by the persons offering obstruction against execution of the decree. In the circumstances therefore, the impugned order is liable to be set aside and it is accordingly set aside. The revision petition is accordingly allowed with costs quantified at Rs.5,000/- which shall be recoverable from the respondent in the execution proceedings instituted by the petitioner. EP.No.369 of 1997 shall stand restored before the learned I Additional Junior Civil Judge, Rajahmundry, who shall execute the decree in accordance with law. _____________________ VILAS V. AFZULPURKAR, J March 12, 2010 DSK