IN THE HON’BLE COURT OF MS. PRAGATI RANA, LD.

CIVIL JUDGE, AT GURUGRAM

IN THE MATTER: -

Nsm Polymers Pvt Ltd Vs. Al Paper House Etc.

Case Details:-
Case no.:- CM/79/2020

REPLY TO SECTION 47 OF CIVIL PROCEDURE CODE,

1908 APPLICATION
Most Respectfully Showeth,

The Decree Holder most respectfully submits as under:

That, the Judgment Debtor argues that the Execution Petition is

not maintainable and has based this argument on various
frivolous grounds. Following are the replies to all the grounds
taken by the Judgment Debtor in his application:

a. Judgment debtor alleges the decree to be nullity and

non-est in the eyes of the law.

A decree cannot set aside just by calling it to be nullity or non-

est in law, proof has to be attached to it.

b. Judgment Debtor alleges that a sole proprietorship does

not have its own legal existence and therefore cannot be
sued in its own name.
As per various judicial precedents sole proprietorship doesn’t
have a legal existence of its own but is a shadow of the sole
proprietor and can sue and be sued in its name. In Amway
India Enterprises Pvt. Ltd. v. Ravindranath Rao Sindhia & Anr.,
Civil Appeal No. 810 of 2021 the Supreme Court while relying
on Ashok Transport Agency v. Awadesh Kumar (1998) 5 SCC
567, upheld that a sole proprietary concern is equated with the
proprietor of the business as follows:

“15. …… In Ashok Transport Agency v. Awadesh Kumar

(1998) 5 SCC 567, this Court has clearly held that a sole
proprietary concern is equated with the proprietor of the
business as follows:

6. A partnership firm differs from a proprietary concern

owned by an individual. A partnership is governed by
the provisions of the Indian Partnership Act, 1932.
Though a partnership is not a juristic person but Order
XXX Rule 1 CPC enables the partners of a partnership
firm to sue or to be sued in the name of the firm. A
proprietary concern is only the business name in which
the proprietor of the business carries on the business. A
suit by or against a proprietary concern is by or against
the proprietor of the business. In the event of the death
of the proprietor of a proprietary concern, it is the legal
representatives of the proprietor who alone can sue or
be sued in respect of the dealings of the proprietary
business. The provisions of Rule 10 of Order XXX which
make applicable the provisions of Order XXX to a
proprietary concern, enable the proprietor of a
proprietary business to be sued in the business names
 of his proprietary concern. The real party who is being
sued is the proprietor of the said business. The said
provision does not have the effect of converting the
proprietary business into a partnership firm. The
provisions of Rule 4 of Order XXX have no application
to such a suit as by virtue of Order XXX Rule 10 the
other provisions of Order XXX are applicable to a suit
against the proprietor of proprietary business “insofar
as the nature of such case permits”. This means that
only those provisions of Order XXX can be made
applicable to proprietary concern which can be so made
applicable keeping in view the nature of the case.

7. In the present case A.C. Basu, Proprietor of Ashok

Transport Agency, had died before the date of the
institution of the suit and on the date of the institution
of the suit, the proprietary concern was not in
existence. Only the legal representatives of A.C. Basu
could be sued with regard to any cause of action
arising against A.C. Basu in connection with the
proprietary business. We find it difficult to understand
how the provisions of Rule 4 Order XXX CPC, could be
extended to such a case.”

In Devendra Surana v. Bank of Baroda W.P. No. 5521(W) of

2017, the Calcutta High Court observed that a natural person
and his sole proprietorship firm do not enjoy the benefit of
being treated as separate legal entities and are the same legal
entity. Hence, it ruled that the liability of the sole
proprietorship firm is that of the natural person carrying on
business under its name as follows:
 “A natural person and his sole proprietorship firm are the
same legal entity. The liability of the sole proprietorship firm
is that of the natural person carrying on business under its
name. The sole proprietorship firm of a natural person and
the natural person owning the firm do not enjoy the benefit of
being treated as separate legal entities.

They are the one and the same legal entity. In the facts of the
present case, although the loan was sanctioned in the name
of a sole proprietorship firm, the natural person owning the
sole proprietorship firm is liable. In law, therefore, the
respondent no. 1 sanctioned credit facility to a natural
person, albeit in the name of the sole proprietorship firm
owned by such natural person.”

c. Judgment Debtor alleges that Section 47 CPC is

empowered to examine all the questions pertaining to
the decree and thus court can examine whether decree
is executable.

The powers of the executing court are quite different and much
narrower than those available in appeal/revision or review.
Executing court can neither travel behind the decree nor sit in
appeal over the same or pass any order jeopardising rights of
parties thereunder, in essence only a decree which is a nullity
can be subject matter of obligation under Section 47 of the
Code and not one which is erroneous in law or on facts. The
same principle has been stated by Supreme Court in Brakewel
Automotive Components (India) Pvt. Ltd. vs P.R. Selvam
Alagappan (2017) 5 SCC 371, while relying upon Vasudev
Dhanjibai Modi v. Rajabhai Abdul Rehman and Ors. (1970) 1
SCC 670, as follows:

“21. …..The following extract from this decision seems apt:

6. A Court executing a decree cannot go behind the

decree between the parties or their representatives; it
must take the decree according to its tenor, and cannot
entertain any objection that the decree was incorrect in
law or on facts. Until it is set aside by an appropriate
proceeding in appeal or revision, a decree even if it be
erroneous is still binding between the parties.

7. When a decree which is a nullity, for instance, where

it is passed without bringing the legal representatives
on the record of a person who was dead at the date of
the decree, or against a ruling prince without a
certificate, is sought to be executed an objection in that
behalf may be raised in a proceeding for execution.
Again, when the decree is made by a Court which has
no inherent jurisdiction to make it, objection as to its
validity may be raised in an execution proceeding if the
objection appears on the face of the record: where the
objection as to the jurisdiction of the Court to pass the
decree does not appear on the face of the record and
requires examination of the questions raised and
decided at the trial or which could have been but have
not been raised, the executing Court will have no
jurisdiction to entertain an objection as to the validity of
the decree even on the ground of absence of
jurisdiction.”
In Brakewel Automotive, the Supreme Court also relied on
Dhurandhar Prasad Singh v. Jai Prakash University and others,
AIR 2001 SC 2552, holding as follows:

“22. …while dwelling on the scope of Section 47 of the Code,

it was ruled that the powers of the court thereunder are quite
different and much narrower than those in appeal/revision or
review. It was reiterated that the exercise of power under
Section 47 of the Code is microscopic and lies in a very
narrow inspection hole and an executing court can allow
objection to the executability of the decree if it is found that
the same is void ab initio and is a nullity, apart from the
ground that it is not capable of execution under the law, either
because the same was passed in ignorance of such provision
of law or the law was promulgated making a decree
inexecutable after its passing.”

None of the above eventualities as recognised in law for

rendering a decree inexecutable, exists in the case in hand.

d. Judgment Debtor alleges that the sole proprietor of the

AL Paper house has passed away and continuing the
execution against a dead person is impermissible in law
as a sole proprietor and sole proprietorship firm are one
and the same entity.

The death sole proprietor is not reason for calling execution

proceedings as impermissible in law. There are various
provisions under Civil Procedure Code, 1908 which come to the
rescue of Decree Holder in case the sole proprietor passes away
before/during the execution proceedings. Following are the
provisions of the Civil Procedure Code, 1908 that the Decree
Holder seeks to rely on for the same:

1. Section 2. Definitions:
(11)“legal representative” means a person who in law
represents the estate of a deceased person, and
includes any person who intermeddles with the estate
of the deceased and where a party sues or is sued in a
representative character the person on whom the
estate devolves on the death of the party so suing or
sued”

2. Section 50. Legal Representative:

(1) Where a judgment-debtor dies before the decree
has been fully satisfied, the holder of the decree may
apply to the Court which passed it to execute the
same against the legal representative of the deceased.

There are various judicial precedents wherein Apex court has

allowed proceedings against the legal representatives of sole
proprietary concern with regard to any cause of action arising
against the sole proprietor.

In Prabhakara Adiga v. Gowri, (2017) 4 SCC 97, the Apex court

held as follows:

“26. …….…It is apparent from section 50 CPC that when a

judgment-debtor dies before the decree has been satisfied, it
can be executed against legal representatives. Section 50 is
not confined to a particular kind of decree. Decree for
injunction can also be executed against legal representatives
of the deceased judgment-debtor.”
In Ashok Transport Agency v. Awadesh Kumar, (1998) 5 SCC
567, the Apex court held as follows:

“7. In the present case A.C. Basu, Proprietor of Ashok

Transport Agency, had died before the date of the institution
of the suit and on the date of the institution of the suit, the
proprietary concern was not in existence. Only the legal
representatives of A.C. Basu could be sued with regard to
any cause of action arising against A.C. Basu in connection
with the proprietary business. We find it difficult to
understand how the provisions of Rule 4 Order XXX CPC,
could be extended to such a case.”

e. The judgment Debtor alleges that the plaintiff with an

oblique motive without any identification and to commit
fraud upon the court made a ficticious person party and
deprived the real person an opportunity to defend the
case and that the suit against the ficticious person is
liable to be dismissed and its execution is also not
maintainable.

In order to rebut the above allegation Decree holder seeks to

rely on following provision of Civil Procedure Code:

1. Order 30
Rule 10: Suit against person carrying on business in name
other than his own.
Any person carrying on business in a name or style
other than his own name, or a Hindu undivided family
carrying on business under any name, may be sued in
such name or style as if it were a firm name, and, in
 so far as the nature of such case permits, all rules
under this Order shall apply accordingly.

The ground urged in the application under section 47 CPC do

not have any factual foundation and are non-existent, which is
liable to be dismissed in limine and doesn’t warrant any
verification thereof. Not only is this objection frivolous on the
face of record, it has been merely resorted to only for
protracting the execution proceedings and the above mentioned
judgments also apply here in binding the legal heir to the
liability of sole proprietor.

f. The Judgment Debtor alleges that because the

necessary party was not joined and description of the
plaintiff being entirely wrong and decree being passed
against the person is fundamental and accordingly,
attachment be set aside and execution proceedings be
dropped on that account.

The above points cover this allegation and necessary party was
made party to the suit and description completely correct.

g. The judgment debtor alleges that because the

proceedings were ex-parte on account of misjoinder and
misdescription of the party therefore the present
objections are maintainable. Additionally, the objector is
managing the estate of late shri Abdul Latif ji as his legal
heir and is aggrieved by the wrong attachment order
therefore this execution petition is maintainable by him.

There has been no misjoinder or mis-description of the parties

in the suit through which present execution proceedings are
taking place. Being the legal heir and managing the estate of
Late Abdul Latif, the objector can be bound for a liability being
the legal heir. Also, legal position regarding liability of legal
heirs in case of sole proprietary has been stated earlier along
with specific legal provisions and also case laws. Therefore, this
execution petition is maintainable and order regarding
execution of the petition should not be interfered with.

h. The judgment debtor alleges that it is a settled law void

decree can be challenged at any stage including
execution or any other collateral proceedings. The
decree being nullity can be examined and set aside by
this Hon’ble Court.

In furtherance of reasoning given previously under serial no. A,

B, C, D, E, & F, the decree holder would like to reiterate that
the executing court cannot go behind the decree. But an
objection as to its validity can be raised in execution
proceedings if such objection appears on the face of the record.
If the objection requires examination or investigation of facts of
the record. If the objection requires examination or
investigation of facts, the executing court cannot entertain such
objection. (1970) 1 SCC 670. There is no objection presented by
the Judgment Debtor which would on the face of it raise even
the slightest of the doubt in relation to the decree that was
passed.

The allegations raised by the Judgment Debtor are visibly self-

serving, omnibus, speculative and unauthentic and cannot
therefore, ipso facto render the decree invalid on account
thereof.
 PRAYER

It is therefore most respectfully prayed that:

a. This Hon’ble Court shall completely reject the application

filed under Section 47 by the Judgment Debtor.
b. This Hon’ble Court shall not impede the Order regarding the
attachment of the bank account of the judgment debtor.
c. This Hon’ble Court shall not impede the Order regarding the
attachment of the bank account of the judgment debtor.
d. .

Dated:12.07.2023 Decree Holder

Through Counsel: -

Arun Choken
Advocate,
Enrl no. PH/6701/2021
+91 9210068000

Yash Yadav
Advocate,
Enrl. No. D/6816/2022
+91 9990718885
 VERIFICATION

I, Sh. Mukesh Kumar, the above named Decree-Holder verify that

paragraphs from a to h are true and correct on the basis of
knowledge and belief and based on the legal advice received. That I
have not suppressed any material facts and I affirm the contents
thereof.

Gurugram
12.07.2023 Decree Holder