Husband challenged dismissal of his Section 47 CPC application objecting to execution of a decree directing return of marriage articles in his wife's divorce suit. The High Court held executing court cannot go behind the decree; objections went to merits appealable only, and upheld dismissal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 33089 OF 2019 (GM-FC)
BETWEEN:
SRI. C.VIKRAM S/O LATE D CHANDRAIAH, AGED ABOUT 49 YEARS, PRESENTLY R/AT NO.21/3, 1st MAIN, VIJAYANANDA NAGAR, NANDINI LAYOUT, BENGALURU-560 096.
…PETITIONER
(BY SRI. GOUTAM S BHARADWAJ, ADV. FOR SRI. RAJENDRA S., ADVOCATE)
AND:
Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA
SMT. B.K. SOWMYA D/O B M KRISHNA, AGED ABOUT 44 YEARS, R/AT NO.394, B M KRISHNA GARDEN, BEHIND M V HIGH SCHOOL, M.G. ROAD, CHIKKABALLAPUR-562 101.
…RESPONDENT
(BY SRI. B.R.VISHWANATH, ADVOCATE)
THIS WP FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 09.07.2019 PASSED IN I.A.NO.1 BY THE PRINCIPAL SENIOR CIVIL JUDGE, AT CHIKKABALLAPUR IN EXECUTION CASE NO.5 OF 2016 PRODUCED AS ANNEXURE-A AND CONSEQUENTLY HOLD THAT THE EXECUTION PROCEEDINGS PENDING ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JDUGE, AT CHIKKABALLAPUR IN EXECUTION CASE NO.5 OF 2016 ARE NOT MAINATAINABLE, IN SO FAR AS THE RETURN OF THE ALLEGED ARTICLES ARE CONCERNED.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed aggrieved by the order passed by the Principal Senior Civil Judge & CJM, Chikkaballapur in Ex.P.No.5/2016 dated 09.07.2019, the petitioner/husband is before this Court.
M.C.No.10/2004 seeking a decree of divorce and also had sought for return of the articles noted in the schedule with cost. It is a case of the wife that the marriage between the petitioner and respondent had taken place on 20.04.1998. The father of
the wife had presented her gold jewels weighing 700 grams, silver articles weighing about 7 kgs, a diamond ring, a rado watch, a golden chain and bracelet at the time of marriage. The list of articles presented is mentioned in the schedule to the petition and as per the schedule, the articles ranging from Sl.Nos.1 to 13. The Court below had passed an ex-parte decree of divorce on 14.12.2004, wherein it is observed that though the notice was served personally, the respondent remained
absent. As such he was placed ex-parte . Thereafter, the Court below has passed an ex-parte decree of divorce by dissolving the marriage between the husband and wife. Further it is observed that wife is entitled to take back petition schedule valuables and it is also directed to return the same to the wife by the husband and his family immediately. In the order, the Court below while discussing the articles has observed that it is even in Ex.P1-agreement, it states that some articles presented at the time of her marriage are in the custody of the respondent's mother. As per Section 27 of the Hindu Marriage Act, 1955 (for short, 'the Act, 1955'), there is a provision to make such order as the Court deems just and proper regarding disposal of property presented at the time of marriage which may belong to both husband and wife to avoid multiplicity of proceedings. It is also observed that in this case it is evident by Ex.P.1 and evidence of PW.1 that petition schedule articles are presented at the time of her marriage are with the respondent's mother and accordingly by exercising discretion vested in the Court had passed an order dated 14.12.2004. Thereafter, the wife had filed the present execution petition in the year 2016. In that the husband had filed application under Section 47 of
CPC stating that execution proceedings are not maintainable to the extent it is seeking to execute the order for the return of the schedule articles in terms of the decree passed in M.C.No.10/2004 dated 28.12.2004 as it lacks inherent jurisdiction and decree to the said extent being void on such terms.
restricted to grant of divorce and nothing beyond. There is no provision in the Hindu Marriage Act which enables issuance of
such direction where the articles which are alleged to be belonging to wife, being in the custody of the husband, is directed to be returned considering the decree of divorce and the said order passed by the Court is beyond the jurisdiction conferred on the Court.
KIRAN SINGH V. CHAMAN PASWAN1 has held that a decree that is passed by the Court without jurisdiction is nullity and the same cannot be executed and such an issue can be raised wherever and whenever even in collateral proceedings also. The trial court considering the submission had dismissed the application filed by the husband observing that in the execution proceedings he is questioning the validity of the judgment and decree and also jurisdiction of Court. It is well settled principles of law that, the executing Court cannot go beyond the decree and give a new findings deviating from the judgment. If at all
the petitioner/husband is aggrieved by the judgment and decree in M.C.No.10/2004, he should challenge the same by way of appeal, which he had not done from the date of
1 AIR 1954 SC 340
judgment i.e., 14.12.2004 till filing of I.A in 2018, which shows that the judgment debtor/husband slept over all these 14 years without challenging the judgment and decree in M.C.No.10/2004 and he has filed this application. Accordingly trial court has dismissed the application.
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marriage and as per that, the mother-in-law has acknowledged that certain jewels are in her custody. It is submitted that neither of them are the parties to the suit and the Court under Section 27 of the Act, 1955 cannot pass such order, on the face of it is nullity and the said issue can be decided under Section 47 of CPC. The agreement dated 03.09.1999 is not enforceable document and basing on that the Court below ought not to have directed the husband to handover the jewels as mentioned in the schedule of the petition filed for divorce. He has relied on the judgments of Hon'ble Apex Court in the case of SUNDAR DASS –Vs- RAM PRAKASH2 , DHURANDHAR PRASAD SINGH – Vs- JAI PRAKASH UNIVERSITY AND OTHERS3 , BALKRISHNA RAMCHANDRA KADAM –VsSANGEETA BALKRISHNA KADAM4 and another judgment in the case of BRAKEWEL AUTOMOTIVE COMPONENTS (INDIA) PRIVATE LIMITED V. P.R. SELVAM ALAGAPPA5 . Basing on these judgments learned counsel submits that the scope of Section 47 CPC is no more resintegra and the Hon'ble
Apex Court in the above cases has categorically observed that when a decree is nullity, the said issue can be agitated by filing an application under Section 47 of CPC. It is submitted in the present case that the Court has failed to consider the scope of Section 47 of CPC and dismissed the petition stating that the petitioner has kept quite for several years without questioning the same. It is submitted that, just because, he has not questioned the said order, the Court cannot dismiss an application and the Court ought to have considered the scope of Section 47 of CPC in the light of the judgments of the Hon'ble Apex Court and also Ex.P.1, which is not a enforceable agreement.
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given by her father at the time of marriage. It is submitted that it is an exparte decree and in spite of notice, the husband had failed to appear before the Court. The Court below considering the case of the plaintiff-wife had granted relief as sought for. It is submitted that though husband wants to take shelter under Section 47 of CPC, it is more or less questioning the legality or otherwise of the judgment passed by the Trial Court even on factual aspects. He also submits that such a course is not available to the husband, who has kept quite from 2004 to 2018. If on such grounds it every application has to be entertained without even questioning the judgment and decree practically no decree can be executed. He submits that whether such articles are retained with the petitioner/husband or not, he has not given relevant answer to this, he was going more on technical aspects than on legal and factual aspect.
Court in the case of PRADEEP MEHRA –Vs- HARIJIVAN J.JETHWA6 . He had relied on para 5 and 6 of the said judgment which reads as follows:
6 2023 LiveLaw SC 936
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5. A bare perusal of the aforesaid provision shows that all questions between the parties can be decided by the executing court. But the important aspect to remember is that these questions are limited to the “execution of the decree”. The executing court can never go behind the decree. Under Section 47, CPC the executing court cannot examine the validity of the order of the court which had allowed the execution of the decree in 2013, unless the court’s order is itself without jurisdiction. More importantly this order (the order dated 12.02.2013), was never challenged by the tenants/judgment debtors before any forum.
The multiple stages a civil suit invariably has to go through before it reaches finality, is to ensure that any error in law is cured by the higher court. The appellate court, the second appellate court and the revisional court do not have the same powers, as the powers of the executing court, which are extremely limited. This was explained by this court in Dhurandhar Prasad Singh v. Jai Prakash University and Others (2001) 6 SCC 534, in para 24, it had stated thus:
“24….. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus, it is plain that executing court can allow objection under Section 47 of the Code of the executability f the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing”.
This court noted further:
“….. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that the original defendant absented himself from the proceeding of the suit after appearance as he had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law.
6. The reality is that pure civil matters take a long time to be decided, the regretfully it does not end with a decision, as execution of a decree is an entirely new phase in the long life of a civil litigation. The inordinate delay, which is universally caused throughout India in the execution of a decree, has been a cause of concern with this Court for several years. In Rahul S. Shah v. Jinendra Kumar Gandhi and Others (2021) 6 SCC 418, this court had observed that a remedy which is provided for preventing injustice (in the Civil Procedure Code) is in fact being misused to cause injustice by preventing timely implementation or orders and execution of decrees. Then, it had observed as under:
“ 23……….. The execution proceedings which are supposed to be a handmaid of justice and subserve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice”
The above judgment is an important judgment in respect of Section 47 as well as Order XXI, CPC as the three Judge Bench decision of this Court not only condemned the abuse of process done in the garb of exercise of powers under Section 47 read
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with Order XXI, CPC, but also gave certain directions to be followed by all Civil Courts in their exercise of powers in the execution of a decree. It further directed all the High Courts to update and amend their Rules relating to the execution of decrees so that the decrees are executed in a timely manner. As far as Section 47 is concerned, this Court had stated as under:
“24. In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree. However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the executing court and the decree-holder is deprived of the fruits of the litigation and the judgment- debtor, in abuse of process of law,
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is allowed to benefit from the subject-matter which he is otherwise not entitled to.
26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the courts first issue show-cause notice asking the judgmentdebtor as to why the decree should not be executed as is given under Order 21 Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the judgment-debtor sometimes misuses the provisions of Order 21 Rule 2 and Order 21 Rule 11 to set up an oral plea, which invariably leaves no option with the court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely.”
This Court then gave certain directions, which were to be mandatorily followed by all Courts dealing with civil suits and execution proceedings. Two of its directions were as follows:
“42…………….
………….
………….
………….
42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised
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and determined during adjudication of suit if due diligence was exercised by the applicant.
………..
……….
42.12. The executing court must dispose of the execution proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
42.13. ……..”
It further directed all the High Courts to update their Rules relating to execution of decrees. It was as under:
“43. We further direct all the High Courts to reconsider and update all the Rules relating to execution of decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 CPC, within one year of the date of this order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of information technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable.”
We have referred to the above decision of this Court only to highlight the slow process in the execution of a decree and the concern of this Court, and its efforts in the past, to improve this situation.
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2016 he files a petition under section 47 of CPC. It is submitted before this court, that as the said judgment and decree passed by the court below is a nullity and that issue can be raised at
any time of the proceedings and the executing court is competent to decide the same under section 47 of the CPC. This court has discussed facts of the case in the preceding paragraph, there are two issues that draws the attention of the court, one is that the issue raised by the petitioner that an application under section 47 of CPC is maintainable as the decree is a nullity and the same is not executable. The second is with regard to the bonafidies on the part of the husband, whether such a practice by the litigants can be entertained, where under the guise of Section 47 of CPC, a party to the judgment and decree can keep quiet without questioning it and later file a petition under Sec. 47 of CPC. One aspect is very clear that the husband has kept quite for about 14 years without questioning a decree of divorce. According to him as far as the decree of divorce granted he is not aggrieved by the same. He is only aggrieved by the part of decree, directing the husband to return the properties as per Ex.P-1. According to him that is beyond the jurisdiction of the family court. As such
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the decree passed by the court below is not executable. This court has perused the petition averments in the MC. As such without even going in to the validity of Ex.P-1, the wife has clearly stated in her petition what are all the properties that were gifted and which are lying with the husband and she also sought for return of the said articles. Even otherwise if it is contested MC, the wife has to prove that the properties are given at the time of marriage and the same are lying with the Husband/Respondent. Undoubtedly this is an exparte divorce decree and the court had granted the relief.
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reaches finality is to ensure any error in law is cured by the higher court. The Appellate Court, second Appellate Court and Revisional Court do not have the same powers as the executing court which are extremely limited and the court had discussed several judgments of the Hon’ble Apex Court and also observed that the remedy which is provided for preventing injustice is infact is being misused to cause injustice by preventing timely implementation of the orders and execution of the decrees. The court had extracted the portion in the judgment in case of
Rahul S. Shah –Vs- Jinendra Kumar Gandhi and others7
where in it is observed that the execution proceedings which are supposed to be a hand made of justice and sub-serve the cause of justice are in effect which are being easily misused to obstruct justice. Then the court has observed a word of caution to the courts while a dealing with an application under section 47 of the CPC. The court observed that all the judgments are referred to highlight the slow process in the execution of a decree and the concern of the court and its efforts to improve the situation.
7 2021 (6) SCC 418
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closed.
SD/JUDGE
NMS/TS List No.: 1 Sl No.: 17
2 issues framed by the court
Whether an application under Section 47 CPC is maintainable to challenge an ex parte divorce decree's direction for return of marriage articles as a nullity after 14 years.
Whether the family court had jurisdiction under Section 27 Hindu Marriage Act to direct return of articles presented at marriage.
Colour shows how this judgement treated each authority
Kiran Singh v. Chaman PaswanReferred
AIR 1954 SC 340 · Who else cites this
Sundar Dass v. Ram PrakashReferred
(1977) 2 SCC 662 · Who else cites this
Dhurandhar Prasad Singh v. Jai Prakash University and OthersReferred
(2001) 6 SCC 534 · Who else cites this
Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna KadamReferred
(1997) 7 SCC 500 · Who else cites this
Brakewell Automotive Components (India) Private Limited v. P.R. Selvam AlagappaReferred
(2017) 5 SCC 371 · Who else cites this
Pradeep Mehra v. Harijivan J. JethwaRelied on¶12
2023 LiveLaw SC 936
Rahul S. Shah v. Jinendra Kumar Gandhi and OthersReferred¶12
(2021) 6 SCC 418 · Who else cites this
5 provisions across 3 enactments
C. Vikram
B.K. Sowmya
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
