2013 & Ors. v. State of J&K, was filed & Ors.

2013, passed by 2nd Subordinate Civil Judge, Srinagar (for brevity “Executing Court”), dismissing application for execution of Decree dated 25th September 2006 passed in a civil suit titled Mohammad Ashraf Ganai v. State of J&K and others.

Perusal of the file reveals that a civil suit bearing File no.196-A, titled Mohammad Ashraf Ganai v. State of J&K and others, was filed by plaintiff/petitioner. He therein sought declaration of his date of birth as 11th October 1969 instead of 11th October 1959. In support of his claim, he relied upon a certificate issued by Headmaster, Government Middle School, Gund Kh. Qasim, reflecting therein plaintiff’s date of birth as 11th October 1969. Taking into account case set up and evidence/ documents in support thereof produced by plaintiff/petitioner, the Trial Court decreed the suit vide judgement dated 25th September 2006, declaring plaintiff’s date of birth as 11th October 1969. To seek implementation of judgement and decree, petitioner/plaintiff filed an CR no.38/2013 c/w CCP(S) no.555/2019 application for execution before the Executing Court. However, the Executing Court has passed order impugned, holding that the decree is a nullity. It is this order of which petitioner is aggrieved and seeks setting aside thereof.

I have heard learned counsel for parties and considered the matter.

The ground of challenge in the instant revision petition is that impugned order, on the face of it, reflects as if it has been passed to decide an Appeal against a judgement. It is averred that in terms of Section 47 of the Civil of Civil Procedure, the Executing Court has no powers to go beyond the decree inasmuch as it is bounden duty of Executing Court to execute the decree, which is binding and conclusive between the parties even if that may not be according to law, for which aggrieved has remedy available under law and Executing Court cannot refuse to execute a decree by treating it a nullity. It is also contended that petitioner in support of his case produced the oral and documentary evidence and Executing Court, going beyond the decree and finding fault with judgement, held that the decree is a nullity. It is next stated that respondents filed an application for setting aside ex parte proceedings, which was dismissed, but they did not prefer any appeal and, resultantly, decree so passed became conclusive and it was not open for Executing Court to make any comment about the judgement and/or decree muchless passing impugned order.

It is pertinent to mention here that executability is the heart and soul of any decree. The right exists so long as it is not taken away expressly or by operation of any law. It is not a precondition that the decree must contain a clause empowering the initiation of execution proceedings in the event of non-satisfaction or noncompliance of any terms. The Executing Court cannot go beyond the decree is the settled principle of law which flows from Section 38 CPC. Pre-decretal arrangement neither incorporated in decree itself, nor forming settlement arrangement cannot be looked into by executing court. Reference in this regard is made to Gh Mohd v. Ab Hamid 1994 SLJ 244; Amar Nath CR no.38/2013 c/w CCP(S) no.555/2019 Koul v. The Jammu & Kashmir Bank 1999 KLJ 720; and Dhurandhar Prasad Singh v. Jai Prakash University and others, AIR 2001 SC 2552.

It is no longer res integra that 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 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.

As it is, Section 47 CPC mandates determination by 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 and purported grounds having no bearing on the validity or the executability thereof.

The Supreme Court in Brakewel Automotive (India) Private Limited v. P. R. Selvam Alagappan, 2017 (5) SCC 371 has observed that allegation of fraud and collusion between the counsel for opposite parties, after many years, ipso facto does not render the decree invalid.

When the instant case is analysed in the backdrop of above settled legal position, it can be very well said that the Executing Court has travelled behind the decree, which it could not have done. Having said that, civil revision petition deserves to be allowed and as a consequence whereof impugned order warrants interference.

For the reasons discussed above, the instant Civil Revision Petition is allowed and order dated 31st May 2013, passed by 2nd Subordinate Civil Judge, Srinagar is set-aside.

Copy be sent down along with the record.

Disposed of along with CCP(S) no.555/2019. Srinagar 02.06.2022 Ajaz Ahmad, PS (Vinod Chatterji Koul) Judge CR no.38/2013 c/w CCP(S) no.555/2019