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2008 DIGILAW 847 (ORI)

SAYED ABDUL JALIL v. JAVED HUSSAIN

2008-09-17

S.PANDA

body2008
JUDGMENT : S. Panda, J. - The Petitioner has challenged the order dated 20.3.2001 passed by the learned Civil Judge (Junior Division), Sambalpur, in Execution Case No. 2 of 1985 rejecting an application filed by the Petitioner u/s 47 of the CPC (hereinafter referred to as "Code of Code of Civil Procedure"). 2. The facts of the case are as follows: The opposite party-Plaintiff-decree holder filed title Suit No. 3 of 1973 in the court of the learned Civil Judge (Jr. Divn.), Sarnbalpur for redemption of suit property which was mortgaged by for a consideration of Rs. 400/-. Basing on the said valuation, the suit was filed wherein Sayed Abdul Wahid-Defendant filed his written-statement stating therein that the mortgage was not a usufructuary mortgage but a simple mortgage and the consideration amount was Rs. 1,500/ and not Rs. 400/-. One Sankirtan Sahu taking further advance, contracted to sell the mortgage property for Rs. 4,000/-. Therefore, the suit was barred by law of limitation and the court lacked pecuniary jurisdiction to try the suit. Though an issue was framed regarding the pecuniary jurisdiction of the court, the same was not pressed at the time of hearing before the trial court as well as the appellate court. The suit was decreed and the said decree was confirmed by the appellate court. At the time of filing of the suit, the pecuniary jurisdiction of the learned Civil Judge (Jr. Division), Sambalpur was only Rs. 1,000/-. The execution case was filed in the year 1985. The present Petitioner, who is the successor of Abdul Wahid, was a minor at the time of the suit and he filed an application u/s 47 of the CPC before the executing court which was registered as Misc. Case No. 5 of 2001 and that was taken up by the court below. He reiterated the facts that the valuation of the mortgage was Rs. 1,500/- and not Rs. 400/- and therefore the decree passed by the court is a nullity and void due to lack of pecuniary jurisdiction and the decree is not executable. The decree-holder filed his objection and submitted that the present Petitioner is the son of Abdul Wahid and the judgment-debtor l(c)/b and l(c)/c were represented through their father guardian Sk. 1,500/- and not Rs. 400/- and therefore the decree passed by the court is a nullity and void due to lack of pecuniary jurisdiction and the decree is not executable. The decree-holder filed his objection and submitted that the present Petitioner is the son of Abdul Wahid and the judgment-debtor l(c)/b and l(c)/c were represented through their father guardian Sk. Liaquat Alli and similarly judgment-debtor l(e) to 1(j) were represented through their mother guardian Hawa Bibi, the widow of Abdul Wahid and the court taking into consideration the minority of the minor judgment-debtors, to safe-guard their interest appointed Sk.Farooq as court guardian in the execution proceeding and after considering the merits, it passed the order dated 19.2.2001 issuing a writ for delivery of possession of the suit property in favour of the decree-holder and on the same day, the present Petitioner filed an application claiming himself as major and filed his objection and also a separate petition for stay of the execution case. The executing court considered the application filed u/s 47 of the CPC and found that the suit was decreed on 1704.1975 and the same was confirmed in Title Appeal No. 23/4 of 1975-76 against which Second Appeal No. 288 of 1976 filed before this Court was dismissed on 18.2.1980 whereafter the execution case was filed on 4.1.1985 and all along the judgment-debtor contested the matter and though the decree-holder got a decree in his favour in the year 1975, he had not enjoyed the said decree till then and after hearing the parties on merits, it issued a writ of delivery of possession of the disputed property and since the minors were represented through mother-guardian and had not contested, the court appointed a court-guardian to protect their interest and all along the case was contested. In the suit though a specific issue was framed regarding the pecuniary jurisdiction of the court, the same was not pressed before the trial court as well as the appellate court and now only to delay the proceeding the Petitioner has filed this application raising the question of pecuniary jurisdiction. 3. Learned Counsel for the Petitioner submitted that since the court had No. pecuniary jurisdiction, the decree was a nullity and could not be executed and therefore the impugned order is liable to be interfered with. 4. 3. Learned Counsel for the Petitioner submitted that since the court had No. pecuniary jurisdiction, the decree was a nullity and could not be executed and therefore the impugned order is liable to be interfered with. 4. Learned Counsel for the opposite party submitted that since the Petitioner raised the question of pecuniary jurisdiction of the court in a petition u/s 47 of the CPC at the time of the execution case, the executing court rightly rejected the same as it did not touch the root of the case because it was not the case of the Petitioner that there was lack of inherent jurisdiction of the court to hear the suit and at the earliest opportunity though the Defendant raised that objection, the same was not pressed. Therefore, the principle of waiver was applicable and it was not open to the judgment-debtor to raise the said question at the stage of execution. 5. As per the provisions contained in Section 21 of the Code of Civil Procedure, objection to the pecuniary jurisdiction of the court has to be raised at the earliest stage of the suit and in the present case, the Defendant raised such an objection in his written-statement and a specific issue was framed to that effect. However, he did not press that issue. 6. In the case of Pathumma and Others Vs. Kuntalan Kutty Dead by Lrs. and Others it has been held by the apex Court that even if the objection was taken in the court of first instance and also such objection was taken at the earlier possible opportunity, yet the other third and important condition as prescribed u/s 21 of the CPC is that there has been a consequent failure of justice. 7. In another case, R.S.D.V. Finance Co. Pvt. Ltd. Vs. Shree Valllabh Glass Works Ltd. the apex Court has held that where in respect of a suit two conditions envisaged by Section 21, such as objection to jurisdiction was taken in the court of first instance, and objection was taken before settlement of issues were satisfied but the third condition contemplating failure of justice was not satisfied, court was not justified in allowing objection to jurisdiction of court in appeal. 8. 8. In the present writ application the learned Counsel for the Petitioner has not been able to point out as to how the Petitioner was prejudiced and as a consequence of lack of pecuniary jurisdiction, how there was a failure of justice. Therefore, this Court is satisfied that the executing court rightly rejected the application filed by the Petitioner u/s 47 of the CPC which will not cause a failure or miscarriage of justice as the decree has been confirmed by the appellate court and in the Second Appeal and the objection regarding pecuniary jurisdiction of the court is not the same as lack of inherent jurisdiction of the court. Therefore, there was No. failure of justice. 9. In view of the above position, this Court is not inclined to interfere with the impugned order and as such, the writ application is dismissed being devoid of merit. No. costs. Final Result : Dismissed