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2007 DIGILAW 202 (ORI)

Biswanath Das v. Debikarani Misra

2007-03-21

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. — The order dated 18.8.2006, Annexure-2, passed by the learned District Judge, Khurda at Bhubaneswar in C.R.P. No.19 of 2005 is assailed by the petitioner in the said CRP invoking jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. 2. In the aforesaid CRP, the order dated 25.11.2005, Annexure-1, passed by the learned Civil Judge (SD), Bhubaneswar in I.A. No.310 of 2005 arising out of Execution Petition No.20 of 2004 was assailed by the petitioner. It is revealed that the petitioner who was judgment-debtor No.13 in the aforesaid Execu¬tion Petition filed an application under Section 47 CPC with a prayer to drop proceedings of the said Execution Petition against him. The learned Civil Judge (SD), vide order Annexure-1, reject¬ed the said petition. The said order, Annexure-1, has been con¬firmed by the learned District Judge by the order Annexure-2 which is impugned in this case. In the aforesaid Execution Petition the ex parte final decree passed in Title Suit No.197 of 1991 by the learned Civil Judge (SD), Bhubaneswar as long back as on 19.1.2004 was sought to be executed. The said suit was one for partition. The present petitioner was arrayed as defendant No.13 in the said suit. Though he appeared in the suit, no step being subsequently taken by him, he was set ex parte. Thereafter an ex parte preliminary decree was passed on 27.2.1997. The said ex parte preliminary decree was not varied by any higher Court. Final decree proceed¬ing being initiated by the decree-holder, notice thereof was served on the petitioner on 1.7.1998. As he again chose not to contest that proceeding, he was set ex parte. In course of final decree proceeding, the executing Court appointed a Civil Court Commissioner. The latter duly served notice on the petitioner. Still he neither appeared nor did file any objection. Consequent¬ly, on 19.1.2004 ex parte final decree was passed. Thereafter the aforesaid Execution Petition was filed on 21.6.2004. The petitioner appeared in the execution proceeding on 26.7.2004, but still he did not take any steps for which he was set ex parte on 30.9.2004. On 7.5.2005 when steps were taken for delivery of possession, the petitioner raised obstructions and then filed objection before the executing Court under Section 47 CPC on 6.7.2005 on the basis of which the aforesaid I.A. No.310 of 2005 was initiated. 3. Mr. On 7.5.2005 when steps were taken for delivery of possession, the petitioner raised obstructions and then filed objection before the executing Court under Section 47 CPC on 6.7.2005 on the basis of which the aforesaid I.A. No.310 of 2005 was initiated. 3. Mr. Sarangi, learned counsel for the petitioner, sub¬mitted that the decree in question being not executable, no delivery of possession could be made on that basis. According to him though the suit was said to be one for partition, the prayer made in the plaint was something else. A decree is not to be recognized by mere nomenclature of the suit, but by the actual relief claimed and/or granted in the suit. Though T.S. No.197 of 2001 was nomenclatured as one for partition, the decree was not passed in that form, and only the plaintiff’s right over an area of Ac.0.127 dec. of land which she claimed to have purchased out of the disputed land was declared. He further submitted that as the plaintiff as per her aver¬ment in the plaint was already in possession of the land which she claimed to have purchased. By the judgment of the trial Court the said land was declared in her favour. Thus, there was no occasion for her to file any execution petition for getting delivery of possession of the land which was already in her pos¬session. Therefore the objection filed the petitioner under Section 47 CPC before the executing Court was very much maintain¬able, and the Courts below acted illegally and material irregu¬larity in not properly appreciating the law in that regard. 4. Mr. D. S. Misra, has entered appearance on behalf of the opposite party. Resisting the submission of Mr. Sarangi, Mr. Misra submitted that the petitioner who was a party to the suit being defendant No.13 never contested the same.He also did not challenge the preliminary ex parte decree in higher Court which was open to him to do so if there was any error in the said decree. Even after receiving notice of the final decree proceed¬ing he did not contest the same nor did he file any objection to the appointment of Civil Court Commissioner or measurement of th disputed land. Thus he is estopped from raising any submission at the stage of execution proceeding. According to him, in the suit admittedly the right, title and interest of the plaintiff over Ac.0.127 dec. Thus he is estopped from raising any submission at the stage of execution proceeding. According to him, in the suit admittedly the right, title and interest of the plaintiff over Ac.0.127 dec. of land more-fully described in the suit schedule was declared which had to be executed. Thus the submission of the learned counsel for the petitioner being not tenable, the Writ Petition may be dismissed in limine. 5. This Court heard the learned counsel for both sides in extenso. The scope of Section 47 CPC is very wide. The executing Court has inherent jurisdiction under this Section to deal with all matters relating to execution, discharge or satisfaction of the decree. But then, the executing Court cannot traverse beyond the decree, unless of course the decree is a nullity. No doubt there is a lot of confusion as to what is meant by a void decree. A decree is said to be void or a nullity if it is passed by a Court having no inherent jurisdiction. Law is well settled that merely because a Court erroneously passes a decree or there is an error while passing the decree, the said decree cannot be called a nullity in the eye of law. A decree can be called a nullity only if it is beyond the competence of the Court passing the same. 6. The Court has various types of jurisdiction, viz., inherent, territorial, pecuniary and personal. In case of territorial, pecuniary or personal jurisdiction, unless objec¬tions are raised at the threshold, the same cannot be done at later stage or at the time of execution of the decree. A decree passed by a Court lacking any such aforesaid jurisdiction is not a nullity. At the other hand a decree passed by a Court lacking inherent jurisdiction goes to the root and should be considered a nullity. 7. In the decision of the Supreme Court in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, reported in AIR 1970 SC 1475 , it has observed : “When the decree is made by a Court which has no jurisdic¬tion 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. But where the objection as to 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 objec¬tion as to the validity of the decree even on the ground of absence of jurisdiction.” In the decision in the case of Narinder Singh v. Kishan Singh, reported in AIR 2002 SC 2603 , it has been held that objec¬tion by a defendant-judgment debtor if not raised at the prelimi¬nary decree stage or even at the time of final decree, cannot be entertained by the executing Court and the same is liable to be rejected. 8. As would be apparent from the narration of facts of the present case made above, the petitioner who was defendant No.13 in the suit appeared in that suit, sought adjournments but final¬ly allowed the suit to proceed ex parte against him. After receiving notice of the final decree proceeding he appeared in the said proceeding, but again did not take steps and was set ex parte. Similarly in the execution proceeding in which he was judgment-debtor No.13 after receiving notice though he appeared, prayed for adjournments, ultimately he was set ex parte. The Commissioner after serving notice on the petitioner went to the spot, delivered possession of the land decreed to the decree-holder on 7.5.2005 and thereafter the petitioner rushed to the executing Court with a petition under Section 47 CPC raising various objections involving disputed questions of fact which ought to have been raised him either in the suit or in the final decree proceeding. Even otherwise, the petitioner being a party to the suit is precluded from obstructing delivery of possession. As law is well settled, only a stranger can do so by filing a petition under Section 21, Rule 97 CPC. The executing Court took all these aspects into consideration, and so also the revisional Court. 9. The submission of Mr. Sarangi is that though the exe¬cuting Court cannot go beyond the decree, for construing the true purport of a decree, in appropriate case, it has to take into consideration the pleadings up to the decree in order to find out the meaning of the words employed in the said decree. 9. The submission of Mr. Sarangi is that though the exe¬cuting Court cannot go beyond the decree, for construing the true purport of a decree, in appropriate case, it has to take into consideration the pleadings up to the decree in order to find out the meaning of the words employed in the said decree. The Court has also to consider the circumstances under which those words came to be employed. This submission is advanced relying upon the decision of the Supreme Court in the case of Bhavan Vaja v. So¬lanki Hanuji Khodaji Mansang, reported in AIR 1972 SC 1371 . But then the facts of the said case were distinctly separate from that of the present case. In the present case, the petitioner was defendant No.13 in the suit. He had enough opportunity to file his written statement and contest the suit. He failed to do so after taking adjournments. In the final decree proceeding also though he appeared did not take steps and allowed the same to be concluded ex parte against him. 10. To test the veracity of the submissions made, this Court perused the relevant documents available on record. This Court is satisfied that neither the judgment nor the decree passed by the Court below was not nullity in the eye of law. More so, the same were not assailed before higher Courts and had attained finality. This Court also perused the order passed by the executing Court and that of the revisional Court and is satisfied that the said orders do not suffer from any error apparent on the face of the record warranting interference of this Court excercising jurisdiction of this Court under Article 227 of the Constitution of India. The approach of the executing Court in the matter was legal and proper. The scenario of facts reveals that the petitioner-judgment debtor is making a last ditch effort to prevent the decree-holder from getting the fruits of the decree passed by a competent Court. While executing a decree, it is the duty of Court to be vigilant to avoid diabolical plans of the judgment-debtor to prevent the decree-holder from enjoying the fruits of the decree. 11. The facts of the present case clearly establish that the petitioner-judgment debtor had enough opportunity to raise his submissions/objections from the very beginning of the suit so as to enable the Court to examine the veracity thereof. 11. The facts of the present case clearly establish that the petitioner-judgment debtor had enough opportunity to raise his submissions/objections from the very beginning of the suit so as to enable the Court to examine the veracity thereof. He did not take such steps. Therefore, raising a dispute with regard to description, identity or extent of the disputed property at the fag end of the litigation, i.e. after possession of the disputed land was already delivered to the decree-holder by the Civil Court Commissioner, was only a bogey to delay the proceeding and to abuse the process of Court. As has been observed by the Su¬preme Court in the decision in the case of Ravinder Kaur v. Ashok Kumar, reported in (2003) 8 SCC 289 , the Courts of law should be careful enough to see through such diabolical plans of the judg¬ment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judi¬cial forums only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system. 12. Even otherwise, as the principles of constructive res judicata are also applicable to the execution proceeding, once a decree has been passed, the decree-holder has right to execute the decree and the judgment-debtor is liable to satisfy the same and it is not possible on the part of the judgment-debtor at later stage to raise any plea which was available to be raised by him during earlier proceeding. 13. In view of the discussions made above,this Court de¬clines to interfere with the impugned order exercising Writ jurisdiction and dismisses this Writ Petition. Petition dismissed.