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M/S. Brakewel Automo... v. P.R. Selvam Alagappa...

Madras High Court

Jun 3, 2016

Judgment

CaseIQ

Smart Summary (Beta)

Factual and Procedural Background

The plaintiff filed a suit for recovery of money in O.S No. 1690 of 2010 originally before the High Court of Delhi. The suit was decreed by the Delhi High Court on 16.12.2011, following which the decree was transmitted to the City Civil Court, Chennai. The plaintiff then filed an Execution Petition (E.P No. 1787 of 2014) before the IX Assistant Judge, City Civil Court, Chennai. The respondent/defendant filed an application under Section 47 of the Code of Civil Procedure (E.A No. 6319 of 2014) in the Execution Petition. The decree holder/plaintiff challenged the maintainability of this Section 47 application and filed an application (E.A No. 787 of 2015) to eschew the evidence of the respondent’s witness and to dismiss the Section 47 application as not maintainable. The Execution Court rejected the plaintiff’s application, prompting the plaintiff to file the present Civil Revision Petition challenging that order.

Legal Issues Presented

Whether the Section 47 application filed by the respondent in the Execution Petition is maintainable.
Whether oral evidence and documentary evidence can be permitted to be adduced by the respondent in the Section 47 application despite the challenge to its maintainability.
Whether the Execution Court erred in rejecting the plaintiff’s application to eschew the respondent’s evidence and to dismiss the Section 47 application.

Arguments of the Parties

Petitioner/Decree Holder's Arguments

The Section 47 application filed by the respondent is not maintainable.
Since the Section 47 application is not maintainable, the respondent should not be permitted to lead oral evidence or mark documents in support of that application.
Consequently, the evidence of the respondent’s witness (P.W.1) should be eschewed and the Section 47 application dismissed.

Respondent/Judgment Debtor's Arguments

The issue of maintainability of the Section 47 application can be decided by the Execution Court while disposing of the application itself and cannot be used to prevent the respondent from adducing oral evidence or marking documents.
Under Section 47 of the Code of Civil Procedure, all questions arising between the parties to the suit in which the decree was passed shall be determined by the Court executing the decree and not by a separate suit.
The respondent has the right to establish his case by leading oral and documentary evidence in the Section 47 application.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court analyzed the legal framework under Section 47 of the Code of Civil Procedure, which provides that all questions arising between the parties to the suit in which the decree was passed shall be determined by the Court executing the decree, not by a separate suit. The Court held that the issue of maintainability of the respondent’s Section 47 application is to be determined by the Execution Court upon disposal of the application itself. Therefore, the respondent cannot be precluded from adducing oral evidence or marking documents merely because the petitioner challenges the maintainability of the application. The Court found no error in the Execution Court’s decision to reject the petitioner’s application to eschew evidence and dismiss the Section 47 application prematurely. It emphasized the petitioner’s right to cross-examine the respondent’s witness and to lead evidence in the Section 47 application.

Holding and Implications

The Court dismissed the Civil Revision Petition, upholding the order passed by the Execution Court. The Execution Court was directed to decide the maintainability of the Section 47 application on merits and in accordance with law within two months from receipt of the order. The direct effect of this decision is that the respondent is entitled to lead evidence in the Section 47 application, and the petitioner cannot prevent this by challenging maintainability at this stage. No new precedent was established by this ruling.

Show all summary ...

M. Duraiswamy, J.:— Challenging the order passed in E.A No. 787 of 2015 in E.P No. 1787 of 2014 in C.S(O.S). No. 1690 of 2010 on the file of the IX Assistant Judge, City Civil Court, Chennai, the Decree Holder/plaintiff has filed the above Civil Revision Petition.

2. The plaintiff filed the suit in O.S No. 1690 of 2010, originally before the High Court of Delhi, for recovery of money. Subsequently, the suit was decreed by the Delhi High Court on 16.12.2011 Thereafter, the decree was transmitted to the file of the City Civil Court, Chennai.

3. The plaintiff filed the Execution Petition in E.P No. 1787 of 2014 before the IX Assistant Judge, City Civil Court, Chennai and in the said Execution Petition, the respondent/defendant took out an Application under Section 47 of the Code of Civil Procedure in E.A No. 6319 of 2014. The petitioner/Decree Holder filed their counter stating that the Section 47 Application filed by the respondent is not maintainable.

4. The learned counsel appearing for the petitioner submitted that the petitioner made their submissions before the Execution Court with regard to the maintainability of the Application. Thereafter, the respondent/Judgment Debtor filed his proof affidavit and sought to mark the documents in the Section 47 Application. Thereafter, the Decree Holder filed an Application in E.A No. 787 of 2015 to eschew the evidence of P.W.1 recorded in Section 47 Application and to dismiss the Section 47 Application as not maintainable.

5. The learned counsel appearing for the petitioner submitted that since Section 47 Application filed by the respondent itself is not maintainable, letting in oral evidence by the respondent cannot be permitted. No doubt, the petitioner has taken a plea in the counter filed in the Section 47 Application with regard to the maintainability of the Application. The issue with regard to the maintainability of the Application can be decided in the Section 47 Application and that cannot be put against the respondent/Judgment Debtor for letting in oral evidence and marking the documents in Section 47 Application. In order to establish his case, the respondent/Judgment Debtor has got every right to let in oral evidence and mark the documents. The respondent cannot be prevented from letting in oral evidence and marking documents in Section 47 Application. Under Section 47 of the Code of Civil Procedure all questions arising between the parties to the suit in which the decree was passed shall be determined by the Court executing the decree and not by a separate suit.

6. In these circumstances, I am of the considered view that the Execution Court has rightly rejected the Application in E.A No. 787 of 2015 to eschew the evidence of P.W.1 and to dismiss the Section 47 Application as not maintainable. The Execution Court can decide the issue with regard to the maintainability of the Section 47 Application while disposing of the Section 47 Application in I.A No. 6319 of 2014. It is needless to say that the petitioner/Decree Holder shall have the right of cross examining the respondent/Judgment Debtor and it is also open to the petitioner to let in oral and documentary evidences in the Section 47 Application.

7. In these circumstances, I do not find any error or irregularity in the order passed by the Execution Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed.

8. The Execution Court is directed to decide the issue with regard to the maintainability of the Application in I.A No. 6319 of 2014 while disposing of the said Application, on merits and in accordance with law, within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed.