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1969 DIGILAW 142 (PAT)

Saryug Barhi v. Devendar Mahton

1969-09-16

K.K.DUTTA

body1969
Judgment K.K.Dutta, J. 1. This appeal arises out of dismissal of a miscellaneous appeal which was preferred by the present appellant against the dismissal of a miscellaneous case under Sec. 47 of the Code of Civil Procedure, which was preferred by him in connection with an execution case, namely, Execution Case No. 7 of 1964, in which this appellant figured as a judgment-debtor. It. appears that the execution case was filed on 10-1-1964 in the court of the Munsif 2nd, Gaya, for execution of a decree which had been passed by the 4th Additional Sub Judge Gaya in T.S. 150/43 of 1949/50. The suit was originally instituted in the court of Munsif 1st, Gaya, on the basis of a valuation of Rs. 3750 and the defendant, that is, the present appellant, had taken a plea in the written statement about the incorrectness of the valuation. The suit was, however, subsequently transferred fay the District Judge to the court of the 4th Additional Sub Judge, Gaya, for disposal and it was ultimately decreed by that court on 29-9-1950. It is admitted that the question of valuation was not pressed by the defendant in that court and the trial of the suit had proceeded on the basis of the valuation as given in the plaint. An appeal was preferred by the present appellant as against the judgment and decree of the 4th Addl. Sub Judge and it is admitted that the memorandum of appeal had been valued by him at Rs. 3750, and is, the value as given in the plaint. After the decision by the first appellate court, there was also a second appeal before the High Court which was disposed of on 2-8-1963 and the aforesaid execution case was thereafter filed on 10-1-1964, as already stated above. In this execution case, there was a prayer for delivery of possession of the properties with respect to which the decree had been obtained by the respondents. After issue of prescribed notices, the writ of delivery of possession was duly served on 2-4-1964. The decree-holders, thereafter, applied for issue of processes for realisation of the costs and after service of processes of attachment, the sale proclamation was issued fixing 16-7-1964 for sale and the same was served on 14-6-1964. After issue of prescribed notices, the writ of delivery of possession was duly served on 2-4-1964. The decree-holders, thereafter, applied for issue of processes for realisation of the costs and after service of processes of attachment, the sale proclamation was issued fixing 16-7-1964 for sale and the same was served on 14-6-1964. The miscellaneous case out of which the present appeal arises was thereafter filed by the appellant-judgment-debtor on 16-6-1964 and the main contention was that the decree having been passed by the court of the 4th Additional Sub Judge, Gaya, the court of Munsif had no jurisdiction to entertain the execution petition. It was further alleged that all the processes in the execution case bad been suppressed. 2. The trial court rejected the contention of the appellant about suppression of the processes in the execution case and further held that the appellant had full know ledge of all the processes. It further held that in view of the provisions of Sec.37 of the Code of Civil Procedure, the execution case had been rightly filed in the court of the Munsif 2nd, Gaya, as the court which had passed the decree had been abolished. On the basis of these findings, the miscellaneous case was dismissed. As would appear from the judgment of the lower appellate court, the finding of the trial court regarding service of processes in the execution case and the appellants knowledge of the same were not challenged and this Court agreed with the trial Court on the point that the Munsif, 2nd Court, had jurisdiction to entertain this petition. The appeal was accordingly dismissed by that court. The present appeal has thereon been filed by the appellant-judgment-debtors. 3. Learned counsel for the appellant wanted to make submissions challenging the correctness of the finding about service of processes in the execution case and about the appellants knowledge thereof. He was, however, not permitted to make any such submission as the finding of the trial court on this point stood affirmed by the decision of the lower appellate court in which court this finding had not been challenged at the time of the hearing. He was, however, not permitted to make any such submission as the finding of the trial court on this point stood affirmed by the decision of the lower appellate court in which court this finding had not been challenged at the time of the hearing. In the circumstances, this finding being essentially a finding of fact could not be challenged in the second appeal as it is not the case of the appellant that there was no evidence in support of this finding or that the court had overlooked any material evidence or misconstrued any part of the evidence in arriving at such finding. 4. The only other point that was urged before me is that the court of Munsif 2nd, Gaya, in which the execution case was filed had no jurisdiction to entertain the execution petition, as the decree had been passed by the Court of the 4th Addl. Sub-Judge. The fact that this court had been abolished and was not in existence when the execution case was instituted is not disputed, but the contention of the appellant in this connection is that the value of the subject-matter of the suit was actually beyond the jurisdiction of the court of Munsif and the suit, therefore, could be entertained by the court of the Subordinate Judge only and hence the Munsif court cannot be considered to be a court which passed the decree within the meaning of Sec.37 of the Code of Civil Procedure. It was further contended that although the fourth Addl. Sub Judges court had been abolished, the functions of that court were being discharged by the 1st Additional Subordinate Judge and, as such, the execution case should have been filed in the court of the 1st Addl. Subordinate Judge and that court should have been treated as the successor-in-office of the court of the 4th Additional Subordinate Judge. 5. It appears that there is no merit in this contention that the court of the 1st Additional Sub-Judge, Gaya, is the successor-in-office of the court of the 4th Additional Sub Judge, Gaya. Subordinate Judge and that court should have been treated as the successor-in-office of the court of the 4th Additional Subordinate Judge. 5. It appears that there is no merit in this contention that the court of the 1st Additional Sub-Judge, Gaya, is the successor-in-office of the court of the 4th Additional Sub Judge, Gaya. Sub-section (1) of Sec. 559 of the Code of Criminal Procedure provides that the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office and Subsection (2) of the same section provides that in case of any doubt as to who is the successor-in-office of any Magistrate, the Chief Presidency Magistrate in a Presidency town, and the District Magistrate outside such towns, shall determine by order in writing the Magistrate who shall, for the purposes of this Code or of any proceedings or order thereunder, be deemed to be the successor-in-office of such Magistrate. Sub-section (3) of the same section makes similar provision for such determination by the Sessions Judge in connection with the question of successor-in-office of an Additional or Assistant Sessions Judge. There is, however, no corresponding provision in the Code of Civil Procedure (hereinafter referred to as "the code") for determination of the successor of a court Which has been abolished or has ceased to exist. It is manifest that when any court of Additional Sub Judge or Additional Munsif is abolished, certain functions of such court, namely, signing of decrees which had not been prepared or signed before the abolition of that court and other miscellaneous matters have still to be discharged by some other Munsif or subordinate Judge and one of such officers posted at the place is accordingly directed by the District Judge in accordance with the powers conferred under Sub-section (3) of Sec.13 of the Bengal, Agra and Assam Civil Courts Act, 1887, to discharge such functions. That, however, does not imply that the court of such a Munsif or subordinate Judge becomes the successor-in-office of the abolished court of Addl. Munsif or Additional Sub-Judge for all purposes when the Code itself does not contain any provision to that effect. That, however, does not imply that the court of such a Munsif or subordinate Judge becomes the successor-in-office of the abolished court of Addl. Munsif or Additional Sub-Judge for all purposes when the Code itself does not contain any provision to that effect. The decision in the case of Baldeo Choubey V/s. Saiyed Abdul Wahab, 1965 BLJR 628 relied upon by the appellant has, therefore, no bearing in determining the point under consideration as in that case, on the abolition of the court of the Subordinate Judge, another subordinate Judge had discharged the functions of signing the decrees passed by the abolished court. Moreover, so far as the execution of decree passed by the court which had since been abolished is concerned, the Code has made express provision about the matter in Sec.37, which provides as follows: "The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include- (a) .......................................... (b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at tha time of making the application for the execution of the decree, would have jurisdiction to try such suit." It may be added that under Sec.38 of the Code, a decree may be executed either by the Court which passed it, or by the court to which it is sent for execution. It would thus appear that the question as to whether the Munsif 2nd Court, Gaya, had jurisdiction to entertain the execution petition depends upon the determination as to whether it may be treated as the court which passed the decree in accordance with the provisions of Sec.37 (b) of the Code. It is manifest from these provisions that if the court which passed a decree had ceased to exist, then the court which would have jurisdiction to try the suit at the time when the execution case is filed must be deemed to be the court which passed the decree. As already stated, the suit out of which tha decree was under execution had been instituted in the Court of Munsif at Gaya on the basis of valuation of Rs. 3750.00 only. As already stated, the suit out of which tha decree was under execution had been instituted in the Court of Munsif at Gaya on the basis of valuation of Rs. 3750.00 only. In view of this valuation, the Court of tha Munsif had evidently jurisdiction to try the suit unless it was found that the property had been wrongly valued and according to the correct valuation the suit was beyond the jurisdiction of that Court. The suit was, however, thereafter transferred, to the Court I of the 4th Additional Subordinate Judge without any determination of the question as to whether the suit had been properly I Valued or not, apparently in exercise of the; powers of the District Judge under Sec.24 of the Code. Further, as already mentioned thereafter, the suit was disposed of without the question of valuation being pressed by the defendant and, as a matter of fact, the same valuation was adopted by the defendant for the purpose of his appeal to the District Judge. The contention of the appellant, however, is that the value of the property forming the subject-matter of the suit was actually beyond the pecuniary jurisdiction of the Munsif and, as such if the suit had to be filed at the time when the execution case was instituted, it could have been filed in the court of a Subordinate Judge and not in the court of a Munsiff. It was contended that, as such the court of Munsif 2nd, Gaya, which had pecuniary jurisdiction to try suits upto the value of Rs. 5,000 at the time when the execution was filed, cannot ba considered to be the court which passed the decree. It may be mentioned that it is alleged in this connection that after disposal of the second appeal arising out of the aforesaid suit, the appellant had filed an application in this Court for a certificate under Article 133 of the Constitution for appeal to the Supreme Court and in that connection a report was called for from the court of the Additional Sub Judge regarding the valuation of the property. It is further alleged that in his report dated 23-12-1955 1st Additional Sub Judge has determined the valuation as being Rs. 10,000 at the time the suit was instituted. It is further alleged that in his report dated 23-12-1955 1st Additional Sub Judge has determined the valuation as being Rs. 10,000 at the time the suit was instituted. The question, however, arises as to whether this subsequent determination of the valuation by the 1st Additional Sub Judge on 23-12-1965 for the purpose of determination of the question as to whether an appeal to the Supreme Court was maintainable or not, can be taken into consideration for the purpose of holding that the Munsifs Court had no jurisdiction to entertain the suit at the time when the execution was filed on 10-1-1964. In this connection, it was contended on behalf of the respondents that the suit having been valued at Rs. 3750 was entertainable by the court of Munsif and the appellant was barred by the principles of constructive res judicata from raising before the executing court the plea that the execution could not be entertained by that court as the suit itself was beyond the pecuniary jurisdiction of that court, as no such plea had been raised in the execution case previously in spite of service of notices under Order 21, Rule 22, service of Dakhaldahani and the subsequent service of writ of attachment. As held by a Full Bench of this High Court in the case of Baijnath Prasad Sah V/s. Ramphal Sahni, AIR 1962 Pat 72 (FB), the principles of constructive res judicata are applicable in execution cases also and where the judgment debtor fails to raise any objection regarding the executability of the decree or has other objections to the execution in spite of service of notice under Order 21, Rule 22 etc. he is debarred by the principles of constructive res judicata from raising such objection in subsequent stages of the execution case. It is, however, well settled that if the executing court had no jurisdiction at all to entertain the execution petition, the failure of the judgment-debtor to raise any objection to the execution at an earlier stage will not debar him from raising such objection at later stage as the executing Court entirely lacks jurisdiction and all its proceedings are void and inoperative and even the consent of the parties cannot give it jurisdiction in such cases. It must, however, be pointed out that the position is quite different, when the question as to whether a Court had jurisdiction or not depends on determination of certain other facts. In the present case, as the suit had been valued at Rs. 3750.00 and the hearing had proceeded on basis of this valuation and the same valuation was adopted by the defendant also in the memorandum of appeal which was presented to the District Judge, the Munsif Court had, prima facie, pecuniary jurisdiction to entertain the suit when the execution case was filed. The existence of that jurisdiction could be challenged only by establishing that although the property had been valued by the plaintiff at Rs. 3750/-and the same valuation had been adopted by the objector in the memoranduni of appeal, which he had preferred before the District Judge, the valuation was actually much higher than that of the limit of the pecuniary jurisdiction of the Munsif. Thus the contention as to the Munsif Court having no jurishdiction to entertain the suit and consequently the execution petition could not be established without proving the fact that the value of the property was beyond the pecuniary jurisdiction of the Munsifs Court. As the judgment-debtor had failed to raise any such objection as regards the value of the property and the consequent lack of jurisdiction of the executing Court in the earlier stage of the execution case after service of notice under Order 21, Rule 22, service of writ of Dekhaldahani and the service of processes for attachment, ha is evidently barred by the principles of constructive res judicata from alleging that the value of the property was beyond the pecuniary jurisdiction of the court of Munsif and that in consequence thereof Munsif had no jurisdiction to entertain the execution petition. In this connection, reference may be made to the aforesaid Full Bench case. In this case, a reference was made by Kamla Sahai, J., who delivered the main judgment, to the following observations made by Chakravarti, C. J. in the case of Newton Hickie V/s. Official Trustee of West Bengal, AIR 1954 Cal 506 : "I am entirely unable to accept the first contention of Mr. Roy that the question of jurisdiction was not decided in the former suits. Roy that the question of jurisdiction was not decided in the former suits. It was certainly not decided directly, and in express terms, but to constitute the bar of res judicata, an explicit decision is not necessary. If an adjudication on a matter is necessarily involved in a decision, it is, for purposes of res judicata, decided." Thereafter, the learned Judge made the following further observations: "He has also said that even an ex parte decree operates as res judicata in respect of grounds of defence against the actual claim and also in respect of matters inconsistent with such claim which might and ought to have been raised. He has further remarked that there was a doubt at one time whether the rule of constructive res judicata applied to the question of jurisdiction; but the decision of the Supreme Court in Mohanlals case, AIR 1953 SC 65 has decided that it does apply. I must make it clear, however, that this observation does not apply to 4 case where there is an inherent lack of jurisdiction in the Court. For instance, a Subordinate Judge tries a case relating to a subject-matter which is exclusively triable by the District Judge. Even though the Subordinate Judge decides the case without objection by the defendant, his decision will be a nullity and will not operate as res judicata. An express or implied decision on the question of jurisdiction will operate as res judicata when certain facts have to be proved in order to show that the court has no jurisdiction but the interested party does not allege those facts or take an objection as to lack of jurisdiction before the Court decides the case." In view of the principles laid down in this case with which I entirely agree, I hold that the appellant having failed to raise any objection in the earlier stages of the execution case, after service of the aforesaid processes, that the value of the property forming subject-matter of the suit exceeded the pecuniary jurisdiction of the Munsifs court and that because of this the Munsifs court could not be considered to be a court which passed the decree within the meaning or; Sec.37 and had, therefore, no jurisdiction to execute the decree, he is barred by the principles of constructive res judicata from raising any such plea in any subsequent stage of the execution case. In the circumstances, the fact that subsequently for the purpose of determining the question as to whether any appeal to the Supreme Court is maintainable against the decision in the second appeal, the subject-matter of the suit has been valued at a figure exceeding the pecuniary jurisdiction of the Court of Munsif is quite immaterial and has no bearing at all. I accordingly hold that the courts below have rightly rejected the objection of the appellant about the Munsifs court, in which the execution case has been filed, having no jurisdiction to entertain the same. 6 In view of the findings above, the appeal is dismissed with costs.