IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 CRP.No. 613 of 2002() --------------------- AGAINST THE ORDER DATED 16/10/2001 IN EP.122/1994 IN OS.11/1991 of PRINCIPAL SUB COURT,KOTTARAKKARA .................... REVN.PETITIONERS/JUDGMENT DEBTORS 4 TO 6: ---------------------------------------------------------------------- 1. G. KUNJUKRISHNAN PILLAI, S/O. PARAMESWARAN PILLAI, THENGAYYATHU VEEDU, KAKKAKKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA. 2. C.R. RAJESEKHARAN, S/O. CHELLAPPAN, SABARI VEEDU, KAKKAKKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA. 3. N. ARAVINDAN PILLAI, S/O. NARAYANA PILLAI, GIRIJALAYAM, KAKKAKKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS/DECREE HOLDER AND JUDGEMENT DEBTORS 1 TO 3: ---------------------------------------------------------------------------------------- 1. KUMAR CHITTY FUND, REPRESENTED BY ITS MANAGING PARTNER, KUMARAN HARSHAKUMAR, THEKKADATHU VEEDU, KOLANNOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA. 2. C. SASIKUMAR, PALAMUTTATHU VEEDU, KAKKAKKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA. 3. R. CHANDRASEKHARA PILLAI, PALAMUTTATHU VEEDU, KAKKAKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA. 4. C. CHELLAMMA AMMA, W/O. CHANDRASEKHARA PILLAI, PALAMUTTATHU VEEDU, KAKKAKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA. (DELETED FROM THE PARTY ARRAY VIDE ORDER DT.30.1.08 IN CRP 613/02.) ADV. SRI.C.V.VASUDEVAN FOR R1 SMT.V.SUJATHA FOR R1 ADV. SMT.V.RENJU FOR R2 & R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON 15/07/2009 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - C.R.P.No. 613 of 2002 - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of July, 2009 O R D E R This revision petition is filed by judgment debtors 4 to 6 in E.P.No. 122 of 1994 in O.S. No. 11 of 1991 on the file of the Sub Court, Kottarakkara. Respondents 1 to 4 herein are the decree holders and judgment debtors 1 to 3 in that execution petition. 2. The facts of the case is briefly as follows. The first respondent herein had obtained a decree against the petitioners and others on account of a chitty transaction. The said chitty was said to be registered in Orissa according to the decree holder. The contention of the petitioners is that, there is no chitty law in Orissa and therefore decree obtained is a nullity and unexecutable. Alternatively, it is contented that the petitioners have no means to pay off the decree debt. The execution court rejected that contention raised by the petitioners herein as per the order in E.P.No. 122 of 1994 dt.16.10.2001. Against that order, the judgment debtors 4 to 6 filed this revision petition. C.R.P.No. 613 of 2002 2 3. Heard the learned counsel for the revision petitioners and learned counsel for the first respondent. 4. As per the order under challenge, it was found that the decree holders failed to prove the means of the judgment debtors and that the judgment debtors 1, 4, 5 and 6 are not liable to be arrested and detained in civil prison. Against that order in the execution petition No. 122 of 1994 dated 16.10.2001, the decree holder filed C.R.P. 105 of 2002 before this Court. 5. In that revision petition, the petitioners herein were respondents 1 to 3. Even though the petitioners herein received notice in the revision petition, they did not appear. That revision petition was allowed by this Court as per order dated 6.3.2003 and the matter was remanded back to the lower court for fresh consideration. In the order in E.P. 122 of 1994, which is under challenge in the present C.R.P., the judgment debtors raised contention that the State of Orissa had no law relating to chitty transaction and the decree holder has obtained a decree in respect of a transaction occurred in the State of Kerala on the pretext that the C.R.P.No. 613 of 2002 3 chitty was conducted from Orissa office. Rejecting this contention, the learned Sub Judge observed that this aspect can be decided only after adducing evidences and that nullity of the decree can be decided only on proving the relevant facts and circumstances and no such evidence was rendered by the judgment debtors. Therefore, there is no need to look into the question of nullity of the decree. The present revision petition is filed against that observation of Sub Court. 6. The decree obtained by the plaintiff chitty company in O.S. No. 11 of 1991 on the file of the Sub Court, Kottarakkara is an ex parte decree. The law is well settled that the executing court cannot go behind the decree except when the decree is a nullity or is without jurisdiction. Since judgment debtors have not chosen to challenge the decree either by way of filing a petition under Order 9 Rule 13 C.P.C. to set aside the ex parte decree or by way of appeal, it is not open to the judgment debtors to challenge the executability of the decree in execution proceedings. C.R.P.No. 613 of 2002 4 7. Moreover, this court has considered the legality of the order under challenge in C.R.P. No. 105 of 2002, in which the present revision petitioners were parties. Therefore, I am of the view that the present C.R.P. is without any merit and is liable to be dismissed. 8. Accordingly this revision petition is dismissed. There is no order as to cost. (M.L. JOSEPH FRANCIS) Judge tm