State of West Bengal v. Partha Basu — 1996 DIGILAW 419 (CAL)

JUDGMENT Banerjee J.: Since the decision of the privy counsel in Prasanna vs. Kalidas (19 IA 166) the law as regards the statutory intent in the matter of incorporation s. 47 in the Code of Civil Procedure is well-settled to the effect that it is of utmost importance that all objections to sales-in-execution should be disposed of as speedily as possible. The judicial committee in the decision noted above recommended a liberal construction of the section so that question capable of determination by the Executing Court may be disposed of by it and parties should not be driven to an independent suit unless the case be clearly outside its scope and purview. The language used by the Legislature is clear, candid and categorical and cannot but be stated to be mandatory as is evident in sub-s. (1) of s.47, since a separate suit for determination of the question relating to the execution, discharge or satisfaction of the decree by a separate suit has been expressly barred. 2. Before going on to the merits of the matter in issue and whilst on s. 47 itself, be it noted that sub-s. (2) of s. 47 has been omitted by 1976 Amendment to the Code : whilst sub-s. (3) remained as it was prior to the Amendment, the Explanation I and II have been substituted for old Explanation. Explanation I is the reproduction of the old Explanation excepting, however, as regards the auction purchaser which stand transferred to Explanation II(a). It is significant to note in this context that the Legislature has been clear and cautious enough to retain the sub-so (3) so as to give a fuller effect of s. 47 when it records that in the event of there being a question as to whether any person is or is not the representative of a party such question shall for the purposes of s. 47 be determined by the Court. Be it further noted that Explanation II(b) in no uncertain language records that delivery of possession to an auction purchaser or his representative shall be deemed to be a question relating to execution, discharge or satisfaction of the decree within the meaning of the section. Be it further noted that Explanation II(b) in no uncertain language records that delivery of possession to an auction purchaser or his representative shall be deemed to be a question relating to execution, discharge or satisfaction of the decree within the meaning of the section. On a plain reading of the language of the section it therefore appears that the conditions necessary for applicability of the section are (a) the question must relate to the execution, discharge or satisfaction of the decree and (b) it must arise between the parties to the suit in which the decree was passed or their representatives. Be it noted here that in order to assess the situation, the Court is obliged to ascribe a proper meaning to the words used in s. 47(1), to wit : (i) all questions arising and (ii) relating to execution, discharge or satisfaction of the decree-proper meanings shall have to be attributed to the words 'arising' and 'relating to' vis-a-vis the word 'their representatives'. While interpreting the words as above due regard to had to sub-s. (3) read with Explanation I and Explanation II(a) and (b). 3. Having noted the broad features and scope of S. 47 of the Code, it would be convenient to advert to the contextual facts in order to appreciate the contentions raised in the appeal which is directed against the order of the Learned Trial Judge in an application under Or. 7 r. 11 of the Code wherein the Learned Trial Judge held that Suit No. 112 of 1995 filed by the State of West Bengal and another is barred under the provisions of S. 47 of the Code and accordingly dismissed the suit. The contextual facts depict that Defendant Nos. 2 to 13 were the owners of premises Nos. 74, 74/1, 75A and 75B, Narkeldanga Main Road and had let out the same to M/s Gabinda Sheet Metal Works and Foundry, a Partnership Firm in which members of Paul Family, being the above noted defendants were the partners. The learned Trial Judge, has detailed out the facts with clarity and we do not deem it expedient to dilate much on the factual score save what is required for appreciating the contentions as raised in this appeal. 4. The learned Trial Judge, has detailed out the facts with clarity and we do not deem it expedient to dilate much on the factual score save what is required for appreciating the contentions as raised in this appeal. 4. The records depict that a special Suit No. 52 of 1978 was initiated by one of the partners against others in 1978 which was finally settled between the parties and terms of the settlement were duly recorded and filed in Court. The records further depict that in early April, 1985 Pratibha Bonnerjea, J. directed sale of the right, title and interest of the owners of the aforesaid properties as also the partnership Firm by public auction by the Joint Receivers appointed in this matter and in terms therewith the Joint Receivers in July, 1988 inserted an advertisement in the daily 'Statesman' inviting offers. Subsequently on 29th July, 1988 at an auction held by Bonnerjea, J. the Defendant No. 15 was declared as the highest bidder and his offer of Rs. 3.51 crores was accepted. The records further depict that on April 24 and 26 by a judgment and order, Baboolal Jain, J. confirmed the sale in favour of the Defendant No. 14 as the nominee of the Defendant No. 15. Be it noted here that shortly before the order as passed by Jain, J. the State of West Bengal through the First Land Acquisition Collector issued a requisition order in respect of premises No. 74, Narkeldanga Main Road on 22nd August, 1991 and on 23rd August, 1991 the State of West Bengal took possession of all the three premises noted above. Subsequently the Defendant No. 14 and 15 filed a writ petition challenging the validity of the requisition order and by a judgment and order dated 5th May, 1992 Mrs. Pal, J. quashed the aforesaid requisition order and directed the State of West Bengal and other Respondents in the writ petition to restore status-quo ante and make over the possession of the premises in question. The factual context reveal that against the order of Mrs. Pal, J. an appeal was preferred and the Appellate Court stayed the operation of the order. Be it also noted that shortly after the order of Mrs. The factual context reveal that against the order of Mrs. Pal, J. an appeal was preferred and the Appellate Court stayed the operation of the order. Be it also noted that shortly after the order of Mrs. Pal, J. on 5th May, 1992, the State of West Bengal on 7th May, 1992 issued a fresh order of requisition in respect of the aforesaid properties and in July, 1992 a second writ petition was also filed challenging the validity of the second requisition order. The records depict that the second writ petition is still pending. In early April, 1995, however, the State of West Bengal filed the instant suit and in an interlocutory application in the suit the State of West Bengal gave an undertaking before Shyamal Kumar Sen, J. that the above appeal along with the two requisition orders would be withdrawn within a specified time and in fact on 10th May, 1995 the Land Acquisition Collector did withdraw the two requisition orders dated 22nd August, 1991 and 7th May, 1992. Subsequently the State of West Bengal has also withdrawn the appeal and on 20th July, 1995 the Defendant No. 14 and 15 filed an application inter alia praying that the plaint filed in suit No. 112 of 1995 by the State of West Bengal be taken of the file or be rejected and it is this application in which the judgment under appeal was passed on 10th January, 1996 by the learned Trial Judge. 5. The suit as above by the State of West Bengal and the Controller of Thika Tenancy was filed for the following reliefs : "(a) Declaration that the order dated 8th April, 1985 passed by the Hon'ble Mrs. Justice Pratibha Bonerjea and orders dated 24th and 25th April, 1991 passed by the Hon'ble Mr. 5. The suit as above by the State of West Bengal and the Controller of Thika Tenancy was filed for the following reliefs : "(a) Declaration that the order dated 8th April, 1985 passed by the Hon'ble Mrs. Justice Pratibha Bonerjea and orders dated 24th and 25th April, 1991 passed by the Hon'ble Mr. Justice Baboolal Jain in the Special Suit No. 52 of 1978 (Sudhanshu Sekhar Pal vs. Ajoyendu Pal & Ors.) are not binding upon and/or enforceable as against the plaintiff No. 1 so far as it relate to the sale of land and premises No. 74, 74/1, 75A and 75B, Narkeldanga Main Road, Calcutta, and the sheds and structures standing thereon as fully described in the schedule being Annexure 'A' hereto; (b) The sale certificate if issued in terms of and pursuant to the orders dated 24th and 25th April, 1991, be adjudged, void and the same be delivered up and/or cancelled by declaring that the said sale certificate does not convey and/or carry any saleable right, title and interest in respect of the aforesaid four plots of land; (c) Declaration, if necessary, that the parties to the said Special Suit No. 52 of 1978 had no saleable right, title and interest in respect of the said four plots of lands together with structure thereon as mentioned in the Schedule being Annexure 'A' hereto; (d) Perpetual injunction restraining the Defendants Nos. 1, 14 and 15 their agents, servants and/or assigns and/or representatives from taking any step and further stop in pursuance of the said impugned sale orders and the sale certificate; (e) Perpetual injunction restraining the Defendant Nos. 1, 14 and 15 and/or their servants, agents and/or assigns from dealing with, disposing of encumbering in any manner, whatsoever, and further holding themselves out that they are the owners of the said plots of land being premises No. 74, 74/1, 75A and 75B, Narkeldanga Main Road, Calcutta; (f) Enquiry into damages caused by the defendants and/or each of them and a decree for such sum as may be found due upon such enquiry." 6. It has been the plaintiffs definite case that the premises in question stand vested in the State upon coming into effect of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 and in this context special reference was made to s. 5 of the Act. It has been the plaintiffs definite case that the premises in question stand vested in the State upon coming into effect of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 and in this context special reference was made to s. 5 of the Act. For convenience sake s. 5 of the Act is noted hereinbelow : "S.5. Lands comprised in thika tenancies and other lands, etc. and right, title and interest of landlords in such lands to vest in the State.–– With effect from the date of commencement of this Act, lands comprised in thika tenancies and other lands held under any person in perpetuity or under registered lease for a period of not less than twelve years or held in monthly and periodical tenancies for being used or occupied as Khatals along with easements, customary rights, common facilities and such other things in such thika tenancies and Khatals attached to or used in connection with such thika tenancies, and Khatals and the right, title and interest of landlords in such lands shall vest in the State free from all encumbrances: Provided that the easements, rights, common facilities or benefits enjoyed by a thika tenant or an occupier of any land under any person in perpetuity or any land under any person under registered lease for a period of not less than twelve years or a Khatal in Khas lands of the landlords shall not be affected in any way by such vesting." 7. In this context the provisions of s. 7 ought also to be noted. "8.7. Thika tenant not to let out land.––(1) Any person occupying land directly under the State within the meaning of sub-section (1) of section 6 shall not have any right, title or interest in the land comprised in the holding and shall not let out the whole or any part of the land for any period: Provided that nothing in this sub-section shall prevent any such person from letting out the whole or any part of the structure standing on the land as long as his thika tenancy subsists. (2) Any person occupying land directly under the State within the meaning of sub-section (1) of section 6 shall not contravene any provision of this Act. (2) Any person occupying land directly under the State within the meaning of sub-section (1) of section 6 shall not contravene any provision of this Act. Any transaction, contract or agreement (oral or written) in contravention of the provisions of this Act shall be void and upon such contravention the thika tenancy shall stand determined and the structure standing thereon shall vest in the State free from all encumbrances from such date as may be specified by the Controller in his order made on his own motion or on an application: Provided that no such order shall be made by the Controller, unless upon hearing the parties affected he comes to a finding that any provision of the Act has been violated. (3) Whenever it appears to the State Government that the land comprised in any thika tenancy is needed or is likely to be needed for any public purpose, it may, after giving the thika tenant and the Bharatias, if any, an opportunity of being heard, resume the land comprised in such thika tenancy with or without structures, if any, and take possession of the land: Provided that before taking possession of the land the thika tenants in actual occupation of the structure or part thereof of Bharatias shall be provided with alternative accommodation in the neighbourhood of such land as far as practicable. Explanation.–– For the purpose of this sub-section 'public purpose' shall include planned development of any area or holding and implementation of any scheme for improvement thereof." 8. Mr. Mallick appearing in support of the Appeal strongly contended that by virtue of the provisions of s. 5 as noted above the premises in question cannot but be said to have been vested in the State and as such the parties to the Special Suit had no saleable interest on the date of the sale of premises and the orders passed by this Court cannot but be ascribed to be a total nullity and hence not executable against the State and as such question of applicability of s. 47 of the Code does not and cannot arise. In fine, Mr. Mallick in this respect contended that the Order as passed by this Court cannot but be ascribed to be a total nullity, since invocation of s. 47 of Code does not and cannot arise. In the same vein Mr. In fine, Mr. Mallick in this respect contended that the Order as passed by this Court cannot but be ascribed to be a total nullity, since invocation of s. 47 of Code does not and cannot arise. In the same vein Mr. Mallick contended that the State in any event cannot be termed to be a representative of the parties to the Special Suit in as much as the premises in question stand vested in the State under the Thika Tenancy Act. 9. In continuation of the submission it has been contended by the Plaintiff-Appellant that the Partnership Firm was a thika tenant under the Paul Defendant landlord and after coming into force of the Thika Tenancy Act, 1981 the State of West Bengal by operation of law became the owner and the landlord of the land in question and the partnership continued to remain as thika tenant under the State. The Partnership Firm continued to remain a thika tenant under the State of West Bengal after January, 1982 I until determination of the same in terms of the provisions of s. 7(2) of the Act. Mr. Mallick contended further, that in the dispute between the partners for dissolution of the Partnership Firm and accounts, in respect of which a Special Suit was filed under s. 20 of the Arbitration Act, none of the partners had any right to ask for or to effect sale of the right of the superior landlord in respect of the said land. The Partnership Firm, as is contended, did not have the right either to sell the thika tendency right of the firm or to act in any way contrary to the right of ownership of the premises in question that is to say, contrary to the interest of the State, being the superior landlord in regard to the premises. It has been further contended by Mr. It has been further contended by Mr. Mallick that the consent decree which was passed by consent of the partners of the Partnership Firm in the suit in which the State of West Bengal was not a party cannot be termed to be having any binding effect on the State and as such the decree is void ab initio and it is on this suit, the Plaintiff in fact challenges the legality and the validity of the decree obtained and question of the suit being barred under s. 47 of the Code does not and cannot arise. In this context various decisions were cited from the bar but we do not see any proper relevance of the same and as such we need not dilate on that score. It has been Mr. Mallick's contention that s. 47 of the Code provides that all questions arising between the parties to the suit in which the decree was passed or their representatives and since the State of West Bengal was not admittedly a party to the suit and neither can be ascribed to be a representative of the landlord within the meaning of s. 47 of the Code, question of the suit being barred does not and cannot arise more so by reason of non-fulfilment of the conditions precedent as envisaged under s.47. 10. Mr. Mallick went on to contend that the second limb of s. 47 contemplates the question relating to execution, discharge or satisfaction of the decree and the question raised in the matter cannot by any stretch be termed to be related to execution, discharge or satisfaction of the decree and as such the second limb of s. 47 also cannot be said to be attracted neither as has been contended by Mr. Mallick, sub-s. (3) of S. 47 has any application in the matter. There must be a valid decree and if the decree is a nullity and cannot but be termed to be void or illegal, such question could not be the subject-matter of S. 47. 11. At the first blush, however, the submissions seemed to be rather attractive but unfortunately on a closer scrutiny the same loses its efficacy. It is now a settled principle of law that the executing court can go into the question of executability of the decree on the ground of it being a nullity. 11. At the first blush, however, the submissions seemed to be rather attractive but unfortunately on a closer scrutiny the same loses its efficacy. It is now a settled principle of law that the executing court can go into the question of executability of the decree on the ground of it being a nullity. In this context two decisions of the Supreme Court seem to be rather apposite. 12. The Supreme Court in the case of Kiran Singh and Ors. vs. Chaman Paswan and Ors. ( AIR 1954 SC 340 ) in no uncertain terms observed: "5. It will be noticed that the proper Court to try the present action would be the Subordinate Court, Monghyr, whether the valuation of the suit was Rs. 2,950 as given in the plaint, or Rs. 9,880 as determined by the High Court, but it will make a difference in the forum to which the appeal from its judgment would lie, whether the one valuation or the other is to be accepted as the deciding factor. On the plaint valuation, the appeal would like to the District Court, on the valuation as determined by the High Court, it is that Court that would be competent to entertain the appeal. The contention of the appellant's is that as on the valuation of the suit as ultimately determined, the District Court was not competent to entertain the appeal, the decree and judgment passed by that Court must be treated as a nullity, that the High Court should have accordingly heard S.A. No. 1152 of 1946 not as a second appeal with its limitations under S. 100, C.P.C but as a first appeal against the judgment and decree of the Subordinate Judge, Monghyr, and that the appellants were entitled to a full hearing as well on questions of fact as of law. And alternatively, it is contended that even if the decree and judgment of the District Court on appeal are not to be treated as a nullity and the matter is to be dealt with under S. 11 of the Suits Valuation Act, the appellants had suffered 'prejudice' within the meaning of that section, in that their appeal against the judgment of the subordinate Judge was heard not by the High Court but by a Court of inferior jurisdiction, viz., the District Court of Monghyr, and that its decree was therefore liable to be set aside, and the appeal heard by the High Court on the merits, as a first appeal. 6. The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of S. 11 of the Suits Valuation Act is on that position. It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was 'coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of s. 11 of the Suits Valuation Act on this position." 13. Apart from the decision in Kiran Singh's case (supra) the Supreme Court in Sundar Dass vs. V. Ram Parkash ( AIR 1977 SC 1201 ) in no uncertain terms also laid down that it is within the domain of the Executing Court to entertain an objection that the decree is a nullity. In Paragraph 3 of the judgment the Supreme Court observed : "3. In Paragraph 3 of the judgment the Supreme Court observed : "3. Now the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the Court to try the case and a decree which is a nullity is void and can be declared to be void by any Court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the state of execution of even in collateral proceedings. The executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing Court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh vs. Chaman Paswan, (1955) 1 SCR 117 = ( AIR 1954 SC 340 ) and Hiralal Patni vs. Kali Nath (1962) 2 SCR 747= ( AIR 1962 SC 199 ). It is, therefore, obvious that in the present case, it was competent to the executing Court to examine whether the decree for eviction was a nullity on the ground that the Civil Court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing Court could declare it to be such and decline to execute it against the respondent". 14. This is, however, upon an assumption of the fact that the decree as passed by the learned Trial Judge was a complete nullity which aspect of the matter would be dealt with shortly hereafter. 15. On the next Court it has been the definite submission of Mr. 14. This is, however, upon an assumption of the fact that the decree as passed by the learned Trial Judge was a complete nullity which aspect of the matter would be dealt with shortly hereafter. 15. On the next Court it has been the definite submission of Mr. Mallick that while it is true that section 47 is of widest possible amplitude but the language used therein ought to be given its proper meaning and attributing such a meaning, question of the State of West Bengal ascribed to be a representative of the Pauls does not and cannot arise. Mr. Mallick contended that the State of West Bengal was admittedly not a party to the suit under s. 20 of the Arbitration Act and as a matter of fact the State became the owner of the property in question in January, 1982 and the Partnership firm became a Thika tenant under the State on and since January, 1982 and in that background when the consent decree was passed in 1985 between the partners of the Partnership Firm, the State of West Bengal was, in fact, the landlord of the land in question and cannot thus be treated to be a representative of the landlord under s. 47. 16. We are, however, unable to lend our concurrence to the submission of Mr. Mallick as regards the true effect of the meaning of the word 'representatives'. A plain reading of sub-so (3) of S. 47 answers the enquiry as posed by Mr. Mallick. Section 47 (3) categorically lays down that where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of S. 47, be determined by the Court. In any event a 'representative' includes a person in whom the proprietary rights have vested by operation of law including statutory law. A person in whom the property vests under a statute stands in the shoes of the erstwhile owner and is within the expression 'representative' in s. 47(1) of the Code. 17. The observation of Patanjali Sastri, J. in Annamalai vs. Ramasami ( AIR 1941 Mad 161 ) lends support to the view expressed above. Sastri, J. observed : "Now, the term 'representative' is not defined in the Code. 17. The observation of Patanjali Sastri, J. in Annamalai vs. Ramasami ( AIR 1941 Mad 161 ) lends support to the view expressed above. Sastri, J. observed : "Now, the term 'representative' is not defined in the Code. It has been held that it is a term of wider import than 'legal representative' as defined by S. 2(II) of the Code and means 'a representative in interest' : see 24 Cal 62. Does it, however, necessarily import, as a condition of its application, a transmission of interest in property, or does it merely connote standing in the place of another for the purpose of deriving some right or advantage from him. The latter is undoubtedly the ordinary meaning of the term and it is commonly used in a variety of contexts which do not involve the idea of any interest in property passing. In the absence of any indication in S. 47 that the term is used in a more restricted sense, there seems to my mind to be no reason why it should not be understood in its ordinary meaning referred to above....." 18. In this context further the observation of Sir Ashutosh Mookherjee, J. in the case of Ajodhya Roy vs. Hardwar Roy (9 CLJ 485) may also be noted. Mookherjee, J. observed : "To determine, therefore, whether a particular person is a representative of a party to the suit, the two tests to be applied are first, whether any portion of the interest of the decree-holder or the judgment-debtor, which was originally vested in one of the parties to the suit, has by act of parties or by operation of law, vested in the person who is sought to be treated as representative, and, secondly, if there has been a devolution of interest, whether, so far as such interest is concerned, that person is bound by the decree. Let us consider for a moment the effect of the application of each of these two tests to the case before us. Let us consider for a moment the effect of the application of each of these two tests to the case before us. With reference to the first test, we observe that as soon as the appellant, whom we have called P, was born, the aggregate of rights previously vested in A, X, Y and Z became vested in P along with A, X, Y and Z. If, before the birth of P, there has been a definition of the interests of the parties, each of the persons A, X, Y and Z, would have been entitled to one-fourth of the estate. If after the birth of P, there had been a similar definition of the interests of the parties, the result would have been that each of the persons A, Y and Z would have been entitled to one-fourth of the estate, but the one-fourth share which would otherwise have been taken by X would now have to be distributed between X and P, in other words, the effect of the birth of P was that, if a partition was called for, X would be entitled to only one-eighth and P to another one-eighth, (Mitakshara Chap. I s. 5), Debi Parshad vs. Thakur Dial, followed in Bhimul Doss vs. Choonee Lall 7. It is manifest, therefore, that by reason of the birth of P, there has been a transference of interest in the eye of the law. To the extent of this interest, P is representative of one of the parties to the suit, namely his father. The case is on principle strictly analogous to that of the transfer of the equity of redemption of the judgment-debtor, in whole or in part, after the mortgage decree has been made. It cannot be disputed that the purchaser of a fragment of the equity of redemption after the decree, is a representative of the judgment-debtor, whether he acquired his interest under a private alienation, as in Madho Das vs. Ramjee Patak or by a judicial sale as in Gulzarilal vs. Madho Ram and Radha Kishun vs. Hem Chandra. On principle, therefore, it is impossible to say that the appellant who has by his birth acquired an interest in the equity of redemption is not a representative of his father who was one of the original parties to the suit, within the meaning of s. 244 of the Code. On principle, therefore, it is impossible to say that the appellant who has by his birth acquired an interest in the equity of redemption is not a representative of his father who was one of the original parties to the suit, within the meaning of s. 244 of the Code. As regards the second test, it is manifest that the appellant is, to the extent of the interest acquired by him by birth, bound by the mortgage-decree made before his birth. It is well-settled that a son cannot object to alienations validly made by his father before he was born or begotten because he could only by birth obtain an interest in property which was then existing in his ancestors. In support of this proposition it is sufficient to refer to the decision of a Full Bench of this Court in Raja Ram Tewary vs. Luchman Pershed, to the decision of their Lordships of the Judicial Committee in Girdharee Lall vs. Kantoo Lall and to the decisions of the High Courts at Agra and Allahabad in Mudho Singh vs. Hurmut Ally and Tudo Singh vs. Ranee in which it was ruled that an alienation of immovable property by a member of a joint Mitakshara family cannot be contested by his son who at the time of the alienation was neither born nor begotten. It is not necessary to show that this proposition is supported by the principles laid down in the Mitakshara, as the more important texts applicable to the matter are set out in the judgment of Sir Barnes Peacock in the Full Bench case to which we have just referred. We take it therefore that the appellant has by his birth acquired an interest in the mortgaged property directed to be sold by the decree and that so far as such interest is concerned he is bound by the decree. He just consequently, be treated, as a representative of one of the parties to the suit within the meaning of s. 244 of the Code, and as such he is a proper party to the execution proceedings." 19. He just consequently, be treated, as a representative of one of the parties to the suit within the meaning of s. 244 of the Code, and as such he is a proper party to the execution proceedings." 19. On the basis of the above-noted decisions it can, therefore, be safely concluded that a person in whom property vests under a statute, stands in the shoes of the erstwhile owner and as such cannot but be termed to be a 'representative' within the meaning of s. 47(1) of the Code. 20. Turning attention on to the objection of Mr. Mallick once again as to the inherent lack of jurisdiction of the Court, the observation of the Supreme Court in the case of Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and Ors. ( AIR 1970 SC 1475 ) seems to be very apposite. The Supreme Court observed that when the decree which is a nullity or when the decree is passed by a court which has no inherent jurisdiction to pass, the objection as to its validity may be raised in an execution proceeding, provided, however, the objection appears on the face of the record : in the instant matter, the objection as contended by Mr. Mallick, also appears on the face of the record. In that view of the matter we are unable to record our concurrence with Mr. Mallick's submission. 21. On the other count Mr. Mallick submitted that after the Amendment of the Code in 1976, the filing of a suit is permissible in terms of provision of Or. 21 Rule 92(4) and (5) of the Code. We are, however, unable to record our concurrence in the matter. Order 21 in the contextual facts does not have any manner of application and taking recourse to Or. 21 cannot be said to be a bona fide attempt on the part of the State. The observation of the Supreme Court in the case of Tarini Kamal vs. Prafulla Kumar ( AIR 1979 SC 1165 ) lends support to such a view expressed above. 22. At this juncture, however, objection as regards the state of pleading, which according to Mr. M. K. Banerjee, appearing for some of the respondents, to the effect that the same are manifestly misleading and utterly mischievous ought to be considered. 22. At this juncture, however, objection as regards the state of pleading, which according to Mr. M. K. Banerjee, appearing for some of the respondents, to the effect that the same are manifestly misleading and utterly mischievous ought to be considered. The factual backdrop unmistakably depict that the plaint filed in the matter records that the plaintiffs came to learn about the vesting in August, 1993. The records, .however, demonstrate that the point of vesting was noted and taken even in the proceeding challenging the first order of requisition issued on August 12, 1991. The appellants, further, admittedly, purported to determine the alleged Thika Tenancy on 14th January, 1992 and subsequently took recourse to acquisition proceedings. It is this course of action by the State of West Bengal which has been strongly criticised by Mr. M. K. Banerjee and we find sufficient justification in such criticism. Two requisition proceedings were initiated one after another and subsequently on the plea of statutory vesting the suit has been filed. The contextual facts itself contradict the averments in the plaint. 23. Before we conclude, be it noted that apart from the issue of vesting, Mr. Mallick very strenuously contended that in a proceeding under s. 20 of the Arbitration Act question of filing terms of settlement does not and cannot arise, since the language of the statute is otherwise specific and it envisaged the filing of the Arbitration Agreement and nothing more than that. While it is true that the scope of s. 20 is restrictive in nature and one cannot take recourse to a proceeding under s. 20 to file a term of settlement but the contextual facts, however, depict differently than what has been submitted by Mr. Mallick. Admittedly, there was an application under s. 41 in the proceeding initiated under s. 20 of the Arbitration Act and the terms of settlement were recorded and filed and a compromise decree was passed in the application under s. 41 and not during the course of hearing of the s. 20. To ascribe a compromise decree as a nullity, in our view, does not and cannot arise. Certain disputes and differences were raised between the parties by reason of which a proceeding was initiated under s. 20 of the Arbitration Act and in an interlocutory application under s. 41 the parties have sorted out the difference and filed a compromise petition. To ascribe a compromise decree as a nullity, in our view, does not and cannot arise. Certain disputes and differences were raised between the parties by reason of which a proceeding was initiated under s. 20 of the Arbitration Act and in an interlocutory application under s. 41 the parties have sorted out the difference and filed a compromise petition. It is the filing of a compromise petition and subsequent passing of a compromise decree which is ascribed by Mr. Mallick to be a nullity. We, however, cannot lend any concurrence to such a view. The Supreme Court in the case of Munsi Ram vs. Banowarilal ( AIR 1962 SC 903 ) in no uncertain terms observed that there is nothing in the Arbitration Act which disentitled the courts from taking note of an agreement of the parties and in the opinion of the Supreme Court the decree cannot be characterised as a nullity on this ground. We also fall to appreciate the introduction of the concept of nullity in so far as the compromise decree is concerned –– It is a voluntary act of the parties and a compromise decree was passed in terms therewith and as such question of declaring it to be a nullity, in our view, on this ground does not and cannot arise. In any event applicability of the provisions of the Code of Civil Procedure to all proceedings before the Court under the Arbitration Act has been recognised by statute in terms of s. 41 of the Arbitration Act and by virtue of Or. 23 r. 3 of the Code, question of there being any lack of jurisdiction to entertain a compromise petition or passing a compromise decree on the basis thereof does not and cannot arise. As regards the point of lack of territorial jurisdiction the same ought not to detain us any further since it is now well-settled that decree passed by a Court lacking in territorial and pecuniary jurisdiction is not a nullity like a decree passed by a court lacking in inherent jurisdiction to try a case in respect of the subject matter of the suit or over the parties to it and the said decree cannot be challenged in any subsequent suit or proceeding. As a matter of fact, in 1976 Amendment to the Code had made a specific bar by reason of the introduction of s. 21(a) of the Code of Civil Procedure which, in no uncertain terms, provides that no suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title on any ground based on an objection as to the place of suing. In this context reference may also be made to the decision of this Court in Benaras Ice Factory Ltd. vs. Sukhlal Amarchand Vaunagra ( AIR 1961 Cal 422 ). In any event since the principal objection is in regard to the jurisdiction, it is settled law that it can be raised in execution proceedings under s. 47. In this context reference may be made to the decision of the Supreme Court in the case of Kesar Singh and Ors. vs. Sadhu ( 1996 (7) SCC 711 ) wherein the Supreme Court observed : "5. In view of the above position, the view of the learned Judge that the appellant is not entitled to raise the executability of the decree in execution is not correct since the Amendment Act was applicable at the time of passing the decree by the appellate court and the above decree, therefore, is a nullity. When the matter goes to the root of the jurisdiction, it is settled law that it can be raised even in execution also. Under those circumstances, the High Court was not right in rejecting the revision of the appellants stating that they are not entitled to raise the plea of nullity. In this view of settled legal position, it does not serve any purpose to remand the matter to the executing court for fresh orders. 24. In that view of the matter there is no merit in this appeal and we record our concurrence with the findings of the learned Trial Judge. The appeal therefore fails and is dismissed. No order, however, as to costs. 25. Prayer for stay made but refused. Ronojit Kumar Mitra, J.: I agree. Appeal dismissed.