Jaya Devi v. Bhupesh Kumar & Anr.

1. This Court is conscious of the limited scope and ambit of appreciation, while dealing with an application filed under Section 47 CPC.

2. It is settled position of law that the Executing Court can allow objection under Section 47 CPC only if it is found that the decree is void ab initio or nullity or if it is not capable of execution under the law.

3. Reference in this regard be made to one recent judgment of Hon’ble Supreme Court of India in Pradeep Mehra vs. Harijivan J. Jethwa (Since deceased Thr. LRs) & Ors, 2023 SCC OnLine SC 1395. Para 10, 11 and 12 of said judgment read as under:-

CM(M) 524/2025 2 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.

11. 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, (2001) 6 SCC 534, in para 24, it had stated thus:

12. 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.”

4. Petitioner herein suffered a decree.

5. The suit was filed by Sh. Bhupesh Kumar and Sh. Pawan Kumar and they sought for permanent injunction and specific performance of Agreement to Sell.

6. Since defendant therein neither appeared despite summons nor did she file any written statement, she was proceeded against ex-parte vide order dated 02.12.2021. CM(M) 524/2025 3

7. The decree was, eventually, passed against her on 12.09.2022.

8. She, subsequently, filed applications under Order IX Rule 13 read with Section 151 CPC and Section 5 of Limitation Act and her such applications were considered by learned Trial Court on 06.02.2024. Learned Trial Court, while observing that she has not been able to show sufficient cause for her non-appearance despite receiving summons as well as Court notice, was constrained to dismiss her abovesaid applications.

9. Admittedly, such order has not been assailed by her, so far.

10. Instead, she filed an application under Section 47 CPC, wherein, it seems that she has reiterated the fact that she was never served with any summons. It was also attempted to be argued by her that though plaintiff had relied upon one agreement but he did not prove the same by examining the witness, related to execution of such agreement.