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1993 DIGILAW 568 (MP)

SUGAR CO-OPERATIVE AGRICULTURAL AND MARKETING SOCIETY LTD. v. KIRLOSKAR BROTHERS LIMITED

1993-10-26

A.R.TIWARI

body1993
A. R. TIWARI, J. ( 1 ) THE order dated 18 10 93 rendered by IV Additional judge to the Court of District Judge, Indore in MJC No. 10/93 thereby dismissing the objection of the petitioner preferred under Section 47 and section 151 of the Code against the execution of the exparte decree on the ground of nullity is under challenge in this revision petition preferred under Section 115 of the Code of Civil Procedure (for short, 'the code' ). ( 2 ) FACTS are jejune. The ex parte money decree was passed against the petitioner in ( OS No. 39-B/87 on 12-7-89 Thereafter, the decree was transferred to the Court at Sagar for its execution. The petitioner objected to the execution on the linchpin that the suit transaction was covered under section 64 (1) (c) of the M- P. Co-op. Societies Act and as such it was not triable in Civil Court and barred in terms of Section 82 of this Act. On this rulcrumy' it was contended that the court which passed the decree lacked jurisdictionsl competence to take cognizance of the matter presented in the suit and as such the decree being without jurisdiction, was null and void. The other side oppugned the contention and criticised the conduct of the petitioner. It was pointed out that in the suit an order was passed in 1988 to proceed ex pane against the petitioner. On an application being made this order was latter on set aside and the proceedings were resumed biparte later, the petitioner again absented itself as a result of which an ex parte decree was passed on 12. 7. 89 The petitioner then took recourse to the proceedings under Order 9 rule 13 of the Code but later, these proceedings also stood anaesthetized on account of the default of prosecution. At Sagar the petitioner took objection under Section 47 of the Code as regards untenability of the execution, being not in conformity with and in excess of the certificate of transfer on the question of quanturn of interest. The petitioner thus participated and submitted to the jurisdiction. It is different matter that the objection on scrutiny was overruled and held to be non-meritorious. The order dismissing objection was upheld by the High Court. Tersely stated, the petitioner did not cboose to attack the enforceability of the decree on the ground of nullity. The petitioner thus participated and submitted to the jurisdiction. It is different matter that the objection on scrutiny was overruled and held to be non-meritorious. The order dismissing objection was upheld by the High Court. Tersely stated, the petitioner did not cboose to attack the enforceability of the decree on the ground of nullity. ( 3 ) LATER the objection on the basis of provisions of M. P. Co-op. Societies Act was raised in Indore Court The Court at Indore. however, rejected the objection by the impugned order. It is, this order which is under challenge in this revision petition. ( 4 ) I have heard Shri A. . K. Sethi learned counsel for the petitioner on the question of admission of this revision petition in detail. ( 5 ) THE counsel urged that the executing court erred in disallowing the objection and acted in the exercise of its jurisdiction illegally or with material irregularity, The thrust of the submission was that invalidity, when lucalent and lligable was not capable of being validated by initial silence or belated impugnment. It was urged that the objection was sustainable on the face of decree without probe and suffered no infirmity on the doctrine of Constructive resjudicata either. ( 6 ) IN pursuant, the counsel sought shelter under the umbriferous umbrella of certain decisions. He placed reliance on (I) Kiran Singh and others v. Chaman Paswan and others. AIR 1954 SC 340 , (2) Sunder Das v. Ram Prakash, AIR 1977 SC 1201 , (3) Union of India v S. B. Singh, AIR 1988 all 225 , (4) Deepchand v. Sampathraj, AIR 1970 Ori 36 , (5) Mandal Co-op. Marketing Soc v. Kailash Narain, 1966 JLJ SN 92. (6) Keshwa Narain v. Mandal Co-op Marketing Soc. and others, 1970 JLJ SN 3 and (7) Sahdeo prasad Verma v. Dr. Rajaram and others. AIR 1984 All 169 . ( 7 ) THERE can be no quarrel, with the proposition of law as contained in the authorities. But every decision is an authority only for what it actually decided. At bottom, every case turns, as it must, on its own peculiar facts. ( 8 ) THIS is then the time to turn to the grounds on which the petitioner had to hear money syllabic 'no' to the prayer. But every decision is an authority only for what it actually decided. At bottom, every case turns, as it must, on its own peculiar facts. ( 8 ) THIS is then the time to turn to the grounds on which the petitioner had to hear money syllabic 'no' to the prayer. The executing court considered the objection in great detail and found it a carpous on the undernoted grounds (A) The belated objection was put in after allowing termination of the proceedings under Order 9 rule 13 of the Code on default. (B) The objection about lack of jurisdiction was a mixed question of facts and law and necessitated enquiry into facts to ascertain whether suit transaction properly fell under Section 64 (1) (c)of the M. P. Co-op Societies Act and consequently, suffered embargo in terms of Section 82 of this Act- The investigation was not possible 'without going behind the decree' and this 'was precisely forbidden by law. This suit claim, culminating into decree, was founded on bill which, as agreed between the parties provided for resolution of controversy through suit in civil Court. This then ceased to be a pure question of law. (B) The objection about jurisdiction was not raised at the earliest available opportunity either before Court at Indore or at Sagar it was thus clearly in after though and was introduced elvishly to defeat the decree or in any case delay its execution. (C) The objection was raised after submission to the jurisdiction by insisting upon shrinkage of interest and declaration of untenability of execution on account of being not in conformity with and being in excess of the 'transfer certificat. Such an objection failed and the order so passed was apheld by the high Court. (D) The objection was hit by the provision as well as the questions entertainable under Section 47 of the Code, relating to the execution discharge or satisfaction of the decree, are determinable by the Court executing the decree. This however, did not mean that the provision was invokable umpteen limits at the whim of the objector. (E) The objection was inutile and rutile in the face of course, conduct and contest. ( 9 ) ON the aforesaid reasons, which did not carry the insignia of irrelevance or infirmity, the executing Court dismissed the objection as mala fide, after thought and untenable in law. (E) The objection was inutile and rutile in the face of course, conduct and contest. ( 9 ) ON the aforesaid reasons, which did not carry the insignia of irrelevance or infirmity, the executing Court dismissed the objection as mala fide, after thought and untenable in law. ( 10 ) IT is thus cogently clear that the consideration of objection depended only on scrutiny of face and required iuvestigative probe. Silence at appropriate stage could not grant licence for speech at inapt stage. It is thus clear that the court below did not error in any manner in exercise of its jurisdiction vested in it by law. ( 11 ) IT needs to be emphasised that the provisions cannot be permitted to be used as weapon of opp ession Justice cannot be seen 10 cry in silence. Judicial proceeding are always in need of 'finality'. In fact, liligants are tired of waiting. Procedural wrangle and delay, modern giant in the field of administration of justice, are hell-bent to erode faith in the system. This then needs to be combated with full vigour, let law and justice live in harmony. There ought to be no antinomy. No account of pettifoggery could be permitted to put the clockback or utter 'nihilism' about judicial verdict handed down after repeated opportunities to the judgment debtor. In such instances, no court could fold hands and become helpless spectator. Even the procedure did not sanction course of "once more". System and commanded call off" no more". The conduct of judgment debtor is ex facie impeachable, rendering bis request liable to be spurned. ( 12 ) IN the face of the facts as noted and in the light of the reasons as chronicled, I have deemed it unnecessary to inflate the size of this order further by documenting elaborate discussion of each authority. Suffice it to say that the same were found to be inapplicable to the facts and stage of the present case, ( 13 ) I have thus bestowed my anxious consideration to the contentions listed in para 5 above and find that the sarne are meritless. There is neither jurisdictional error not any failure of justice. Suffice it to say that the same were found to be inapplicable to the facts and stage of the present case, ( 13 ) I have thus bestowed my anxious consideration to the contentions listed in para 5 above and find that the sarne are meritless. There is neither jurisdictional error not any failure of justice. ( 14 ) IT is well esalished that jurisdiction under Section 115 of the Code is little and limited The impugned order, on scrutiny, is held to be unamenable to interference in revisional jurisdiction The contentions are manifestly meretricious and liable to be rejected. ( 15 ) PX-CONSEQUENTIAL, this revision petition, being devoid of merit, fails and is dismissed summarily without notice to the other side. Revision Petition dismissed. .