Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 3178 (MAD)

Rajavanai v. P. Nithiyanandam

2011-07-06

V.PERIYA KARUPPIAH

body2011
JUDGMENT :- 1. This Revision has been filed by the Petitioners in E.A. No.172 of 2005 in E.P. No.100 of 2002 in O.S. No.77 of 1985 against its dismissal passed by the lower Court, by rejecting the prayer that the final decree passed in O.S. No.77 of 1985 of the file of the learned II Additional Sub-Judge, a nullity and incapable of execution and thereby to dismiss E.P. No.100 of 2002. 2. Heard Ms. P.T. Asha learned Counsel appearing for M/s. Sarvabhuman Associates Counsel for Petitioner and Mr. P.B. Balaji appearing for the Second Respondent and Mr. K. Kalyanasundaram, learned Counsel appearing for the Fourth Respondent. There is no appearance for the Respondents 1 & 3 for the Revision. 3. The Petitioners before the lower Court are the wife and children of the First Respondent/third parties. The Respondents 1 to 3 were the judgment debtors and the Fourth Respondent is the decree holder in a Suit filed by him for the sale of mortgage property created under an equitable mortgage against the said properties and a final decree has also been passed in terms of the preliminary decree and on the basis of the final decree passed the execution proceedings have been launched by the decree holder in E.P. No.10 of 2002. According to the Petitioners that the Suit was filed by the First Petitioner seeking for maintenance and the same was decreed and a charge has been created on the properties mortgaged by the First Respondent along with other Respondents and therefore, the Execution proceedings launched on the basis of the final decree cannot proceed against the charge decree passed in favour of the First Petitioner. 4. Apart from that it has been contended that the preliminary decree was passed in the Suit O.S. No.77 of 1985 on 11.12.2005 and however, the Fourth Respondent/decree holder had applied to the said Court on passing the final decree in terms of the preliminary decree only on 2.9.1994 which is more than three years. 5. 4. Apart from that it has been contended that the preliminary decree was passed in the Suit O.S. No.77 of 1985 on 11.12.2005 and however, the Fourth Respondent/decree holder had applied to the said Court on passing the final decree in terms of the preliminary decree only on 2.9.1994 which is more than three years. 5. Further more, it has been contended that some of the properties are not within the jurisdiction of the said Court which passed the preliminary decree and final decree and the Trial Court lack of territorial jurisdiction and the decree passed for want of inherent jurisdiction would certainly be null and void and on that score also the decree passed by the Trial Court cannot be executed as a decree passed was a nullity. 6. However, the lower Court had considered all the points raised by the Petitioner and disallowed them and finally dismissed the Petition. Aggrieved by the said decisions, the Petitioners have come forward with this Revision. 7. Learned Counsel for the Revision Petitioners would submit in her argument that the lower Court was not correct in coming to a conclusion that the Petition filed by the Petitioners was not maintainable. She would further submit that the decree passed by the Trial Court in O.S. No.77 of 1985 on 11.12.2005 and subsequently the final decree passed on 30.6.1995 is also nullity since the said Court had no jurisdiction to pass a decree when the mortgaged property is not covered under its territorial jurisdiction. She would also submit that the final decree Application was admittedly filed on 2.9.1994 while the preliminary decree was passed on 11.12.2005 and the period in between those two events was more than three years and the limitation for filing the final decree Application from the date of preliminary or from the time fixed for payment as directed in the preliminary decree, would be three years and in the present case it is obviously more than 8 years passed and therefore, the final decree application it is not entertainable and the decree passed on the said application is also a nullity. She would also submit in her argument that the lower Court had come to a wrong conclusion that the validity of the decree cannot be raised in execution proceedings and it should have done at the earliest cannot be applied in respect of the limitation. She would also submit in her argument that the lower Court had come to a wrong conclusion that the validity of the decree cannot be raised in execution proceedings and it should have done at the earliest cannot be applied in respect of the limitation. She would also submit that the judgment of the Honourable Apex Court reported in Vasudev Dhanji Bhai Modi v. Raja Bhai Abdul Rehman, AIR 1970 SC 1475 , would categorically lay down the principle that the objection regarding the decree as to its nullity can be raised even in the Execution proceedings which are lost sight of, the lower Court. She would also submit that the charge decree passed in O.S. No.234 of 2003 filed by the First Petitioner against her husband should have been effective from the date of liability of maintenance that therefore which would pre-date the mortgage decree. She would also submit that the lower Court did not consider the applicability of the ingredients of Article 47 of the Registration Act coupled with Order 34 of C.P.C. She would also submit in her arguments that Section 5 of the Registration Act is not applicable to condone the delay in preferring the Application was for passing final decree and even it is applied, no such Application was filed to condone the delay caused therein. She would therefore, request the Court to set aside the order passed by the learned Subordinate Judge, Udumalpet and thereby allowed the Revision. 8. Learned Counsel for the Second Respondent would support the arguments of the Petition and requested the Court to pass suitable orders thereon. 9. Learned Counsel for the Fourth Respondent Mr. K. Kalyanasundaram would submit in his argument that the lower Court was correct in coming to the conclusion to refuse the case of the Petitioners that the maintenance charge decree would prevail over the mortgage decree. Actually the Suit was filed by the First Respondent seeking for maintenance from her husband in the year 2003 only and the charge decree was passed only thereafter whereas the preliminary decree for mortgage was passed against the properties on 11.12.1985. Actually the Suit was filed by the First Respondent seeking for maintenance from her husband in the year 2003 only and the charge decree was passed only thereafter whereas the preliminary decree for mortgage was passed against the properties on 11.12.1985. He would further submit in his argument that the first Respondent was contesting the Suit while the other Defendants remained ex parte and the said preliminary decree was passed on 11.12.1985 and there was no objection raised regarding the territorial jurisdiction of the Court to pass the adjudicate against the property which was not covered in its territorial jurisdiction. He would further submit that the objection ought to have been raised at the earliest point, however, it has been raised only in the execution stage. He would draw the attention of the Court to the provisions of Section 21 of C.P.C. and under the said provisions, the defendant who have been deemed as accused to the jurisdiction or in other words waived the defence and therefore the decree passed thereon cannot be deemed as a decree of nullity not a decree passed for lack of jurisdiction. He would further submit that there is a difference in between lack of inherent jurisdiction and territorial jurisdiction. He would also submit that in the event the parties have participated in the trial without raising the plea of territorial jurisdiction and decree is passed on the basis of such pleas it should be deemed that the parties to the suit have consented to the jurisdiction or waived their defence in respect of territorial jurisdiction. He would also submit catena of judgment of the Honourable Apex Court reported in Hiralal Batni v. Kalinath, AIR 1962 SC 199 ; and Koopilan Uneen’s daughter Pathumma and others v. Koopilan Uneen’s son Kuntalan Jutty, dead by LRs and others, AIR 1981 SC 1683 ; RSDB Finance Company Private Limitation v. Valap Glass Works Limited, 1993 (2) SCC 10; Hasan Abas Syed v. Hussain Abbas Syed and others, 2007 (1) TLNJ 627 Civil (SC). He would point out the judgment of this Court reported in Abdul Rahiman Rowther v. Komalathammal, AIR 1980 Mad. 114 ; Om Sakthi Renergies Limited, Hyderabad v. Megatech Control Limited, Chennai-600 020 and another, 2006 (2) CTC 161 (DB) : 2006 (1) TNLJ (Civil) 607, for the same principle. He would point out the judgment of this Court reported in Abdul Rahiman Rowther v. Komalathammal, AIR 1980 Mad. 114 ; Om Sakthi Renergies Limited, Hyderabad v. Megatech Control Limited, Chennai-600 020 and another, 2006 (2) CTC 161 (DB) : 2006 (1) TNLJ (Civil) 607, for the same principle. He would also submit that according to the said principles laid down by the Honourable Apex Court and this Court once consent is given regarding the territorial jurisdiction whether it is implied or express the decree cannot be question thereafter especially in Execution proceedings. He would also submit that the consent regarding the lack of inherent jurisdiction is different from the consent for territorial jurisdiction and therefore, the arguments advance by the learned Counsel for the Petitioner to the effect that consent to any jurisdiction cannot be given by any parties and the decree passed thereon would be a nullity, cannot be sustained. He would also bring to the notice, another judgment of the Honourable, Apex Court reported in Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda, 2003 (1) 364 (SC) : AIR 2003 SC 1017 , for the principle that the time for the period to apply for final decree can be extended in the manner provided in Order 34, Rule 8, C.P.C. and provisions of Order 34, Rule 7(2). He would also bring it to the notice of the Court regarding the principle ‘once the mortgage is always a mortgage’. Therefore, the time can be extended for filing the final decree Petition even beyond the period of three years on condoning the delay caused therein either impliedly or expressly. He would, therefore, request the Court to dismiss the Revision. 10. I have given anxious thoughts to the arguments advanced on either side. 11. The Petitioners filed Applications in E.A. No.172 of 2005 and they had asked for dismissal of the E.P. On the ground that the properties were already been subjected to a charge decree passed in their favour in the Suit filed in O.S. No.234 of 2003. Admittedly, the preliminary decree for mortgage was passed in O.S. No.77 of 1985 against the Defendants on 11.12.1985 and therefore, we could see that there was no charge decree passed on the claim of maintenance made by the First Petitioner, on the said date. Admittedly, the preliminary decree for mortgage was passed in O.S. No.77 of 1985 against the Defendants on 11.12.1985 and therefore, we could see that there was no charge decree passed on the claim of maintenance made by the First Petitioner, on the said date. Therefore, the preliminary decree passed in the mortgage Suit cannot be overridden by a subsequent charge decree passed in favour of the First Petitioner. The lower Court had also accepted the reason for negativing the claim of the Petitioners which need not be interfered in this Revision. 12. The further contentions of the Petitioners is that decree was passed without any territorial jurisdiction and the final decree Application was filed after the lapse of three years period from the date of passing of the preliminary decree in filing the Application, which would be governed under Article 137 of the Limitation Act. 13. Firstly, when we analyse the point of territorial jurisdiction, it is contended that the Court which passed a decree namely, Sub-Court, Coimbatore, had no territorial jurisdiction on that date of decree and therefore, the decree passed on 11.2.1985 was a nullity and it cannot be executed. For that proposition, the judgment of the Honourable Apex Court reported in Sushil Kumar Mehta v. Govind Ram Bohra, 1990 (1) SCC 193 , has been cited by the learned Counsel for the Petitioners. The relevant passage on this point would be thus: “12. This Court has held that it is a well established principle that a decree passed by a Court without jurisdiction is a nullity and the plea can be set up whenever and wherever the decree is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings.” 14. However, it has been contended by the learned Counsel for the Respondents that the parties to the Suit have given implied consent and waived the point of jurisdiction in the course of conduct of the Suit and the preliminary decree was passed and the provisions of Section 21 of C.P.C. would squarely apply and there cannot be a nullity of decree on the basis of the lack of territorial jurisdiction. They would cite the judgment of the Honourable Apex Court reported in Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199 . The relevant passage would run as follows. They would cite the judgment of the Honourable Apex Court reported in Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199 . The relevant passage would run as follows. “It is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure. Having consented to have the controversy between the parties resolved by reference to arbitration through Court, the Defendant deprived himself of the right to question the authority of the Court to refer the matter to arbitration or of the arbitrator to render the award. It is clear, therefore, that the Defendant is stopped from challenging the jurisdiction of the Bombay High Court to entertain the Suit and to make the reference to the Arbitrator. He is equally stopped from challenging the authority of the Arbitrator to render the award.” 15. Yet another judgment of the Honourable Apex Court reported in Koopilan Uneen’s daughter Pathumma and others v. Koopilan Uneen’s son Kuntalan Kutty, dead by LRs and others, AIR 1981 SC 1683 , was cited by the learned Counsel and the relevant passage would run as follows: “Now in the present case conditions Nos.1 & 2 are no doubt fully satisfied; but then before the two Appellate Courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. Not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred. Not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred. We called upon learned Counsel for the contesting Respondents to point out to us even at this stage any reason why we should hold that a failure of justice had occurred by reason of Manjeri having been chosen as the place of suing but he was unable to put forward any.” 16. In yet another judgment of the Honourable Apex Court reported in Hasan Abas Syed v. Hussain Abbas Syed and others, 2007 (1) TLNJ 627 Civil (SC) it is held thus: “So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing.” 17. On a careful perusal of the dicta laid down in the judgments of the Honourable Apex Court, we could see that the objections as to the territorial jurisdiction should have been raised at the earliest. Similar view was taken by this Court in an earlier judgment of this Court reported in Abdul Rahiman Rowther v. Komalathammal, AIR 1989 Mad. 114. The relevant passage would run thus: “7. In my view, this authoritative pronouncement of the Supreme Court making a distinction between an objection as to inherent lack of jurisdiction, on the one hand, and a more objection to the territorial jurisdiction of the Court on the other, is germane to the present case. The only objection of the judgment-debtor, in the present case, is that the properties which were the subject matter of the suit mortgages were outside the territorial jurisdiction of the learned District Munsif of Thiruvayaru. This certainly is not an objection which goes to the competence of the Court. In any case, even this objection must be deemed to have been waived by the judgment-debtor. Waiver may be either express or implied. An implied waiver can be gathered by the conduct of the person who is stated to waive a particular right of his. This certainly is not an objection which goes to the competence of the Court. In any case, even this objection must be deemed to have been waived by the judgment-debtor. Waiver may be either express or implied. An implied waiver can be gathered by the conduct of the person who is stated to waive a particular right of his. In this case by his masterly inaction both at the stage of the preliminary decree and at the stage of the final decree in the Suit, the judgment-debtor must be deemed to have waived whatever objection to territorial jurisdiction he might have put forward in his written statement which he filed in answer to the suit claim.” 18. The Division Bench of this Court had also come to a conclusion that the objection as to the place of suing ought to have been raised at the earliest possible opportunity and if it is not pressed, it would amount to waiver of objection as to jurisdiction, according to Section 21(1) of C.P.C. as reported in a subsequent judgment of this Court i.e., Om Sakthi Renergies Limited, Hyderabad v. Megatech Control Limited, Chennai-600 020 and another, 2006 (2) CTC 161 (DB). Therefore, we could see in this case that the First Defendant in O.S. No.77 of 1985 even though participated in the Suit did not raise any objection as to the territorial jurisdiction and preliminary decree and consequently final decree was passed. Admittedly, the Petitioners in this C.R.P. are the third parties and they were parties in the Suit. Even though the said Court namely Sub-Court, Coimbatore had no jurisdiction to pass a preliminary decree on the mortgaged properties since no objections were raised by the First Defendant regarding the territorial jurisdiction it ought to have been considered as waived by him under Section 21, C.P.C. Therefore, the judgment of the Honourable Apex Court as cited by the learned Counsel for the Revision Petitioners in Sushil Kumar Mehta v. Govind Ram Bohra, 1990 (1) SCC 193 , was in a different point and nullity of the decree was ordered on the lack of inherent jurisdiction and therefore, the said facts as not applicable to the present case. The principles laid down in the judgment of the Honourable Apex Court reported in Koopilan Uneen’s daughter Puthumma and others v. Koopilan Uneen’s son Kuntalan Kutty, dead by LRs. The principles laid down in the judgment of the Honourable Apex Court reported in Koopilan Uneen’s daughter Puthumma and others v. Koopilan Uneen’s son Kuntalan Kutty, dead by LRs. And others, AIR 1981 SC 1683 ; Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199 ; and Hasan Abas Syed v. Hussain Abbas Syed and others, 2007 (1) TNLJ 627 (Civil) (SC), are applicable to the facts of this case. Therefore, I cannot find that the said lack of territorial jurisdiction even it is true would writ large to make the decree as null and void. Therefore, I find no reason to interfere with the said finding of the lower Court. 19. As regards the question of limitation in filing the Application to pass the final decree we can see that the Plaintiff filed the final decree Application on the preliminary decree passed on 11.12.1985, only on 2.9.1994. The said Application was numbered in I.A. No.1641 of 1994 and a final decree was passed on 30.6.1995. It has been contended that the said Application was admittedly filed beyond the period of 3 years the limitation as contemplated under Article 137 of the Limitation Act. It has also been contended that there is no specific Article governing the period of limitation for filing any final decree Application on a preliminary decree passed in a Suit for mortgage. According to the contention of the Petitioners, under Article 137 of the Limitation Act, the time prescribed was only three years. No doubt, the final decree Application filed by the Plaintiff on the preliminary decree for sale on mortgage dated 11.12.1985 was only on 2.9.1994. According to the judgment of this Court reported in S. Veluchamy Nadir v. Diravia Nadar, 1991 (1) LW 502 , Article 137 is only for final decree Petition against the preliminary decree passed on a Suit for sale on a mortgage. The lower Court had confused with a Suit for redemption of mortgage in which a preliminary decree was passed and a final decree had been applied for by the mortgagor, for which the judgment of the Honourable Apex Court reported in Achaldas Durgaji Oswal v. Ramvilas Gangabisan Hoda, 2003 (1) CTC 364, has been followed by this Court in the judgment reported in Mahaeswaran and others v. Mariammal and others, 2006 (5) CTC 399 . In both the judgments, it has been categorically dealt with the Application of Articles 61 & 137 in respect of the final decree proceedings relating to redemption of mortgage. The person execution was launched only a final decree passed in pursuance a preliminary decree passed in Suit for sale of the mortgaged property. The procedure for sale of mortgaged property launched by the mortgage is entirely different and the present Suit was filed by the Mortgagee and he obtained a preliminary decree and thereafter, he applied for the passing of final decree under Order 34, Rule 5 of C.P.C. It has also been categorically laid down by the Honourable Apex Court reported in Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda, 2003 (1) CTC 364 : AIR 2003 SC 1017 , the Order 34, Rules 7 & 8, do not confer any right upon usufructory mortgagee to apply for final decree which is conferred of mortgagee on other types of mortgages. It has been clearly distinguished, the right of the mortgagee to apply for final decree in a mortgage Suit is different from the redemption Suit for obtaining preliminary decree and final decree by the mortgagor. According to the judgment of this Court reported in S. Veluchamy Nadar v. Diravia Nadar, 1991 (1) LW 502 , it is very clear that the time for applying final decree is 3 years from the date of passing or preliminary decree or within the time limit granted by the Court for payment of the mortgage amount that is governed under Article 137 of the Limitation Act. 20. Admittedly, in this case, the final decree Application was not filed by the Plaintiff (mortgage) within a period of three years from the date of preliminary decree. However, the said final decree Application was numbered, admitted and was ordered and a final decree was passed. In the said final decree also, the First Respondent had not raised any objection regarding the period of limitation. No doubt, the First Defendant did not come forward with allegation that final decree Application was filed and the period for three years time, and therefore, it has to be declared as null and void. The persons who are approaching the Court are third parties who are not parties to the preliminary decree. No doubt, the First Defendant did not come forward with allegation that final decree Application was filed and the period for three years time, and therefore, it has to be declared as null and void. The persons who are approaching the Court are third parties who are not parties to the preliminary decree. We have already found that there is no other right for the Petitioners over the property to raise any claim over the property or to seek declaration that the decree was a nullity on those grounds since the decree was not at all questioned by the First Defendant or other Defendants and the final decree was passed even after the period of limitation it cannot be declared as null and void. Similar view was taken by the Allahabad High Court in its judgment reported in Jugal Kishore v. Aiysha Kautun, 1987 AIIL.J 27. Therefore, we cannot accept the claim of the third party/Petitioners to declare the final decree passed a nullity and to dismiss the Execution Petitions launched upon the said final decree. Therefore, the decrees passed by the Trial Court in O.S. No.77 of 1985 dated 11.12.1985 and 30.6.1995, cannot be set aside at the request of the Petitioners. The mistake of the lower Court in applying the principles governing and the provisions applicable to redemption of mortgage by the mortgagor with the Suit for sale on a mortgage by the mortgagee will not in any way help the Petitioners, who are third parties. The decision reached by the lower Court to dismiss the claim of the Petitioners is therefore upheld and thus, the final decree passed, cannot be questioned as nullity on the point of limitation, by the Petitioners, who are third parties. 21. For the foregoing discussions and findings, I am of the view that there is no reason to interfere with the conclusion of the lower Court and therefore, the Revision is liable to be dismissed. Accordingly, the Revision is dismissed without costs. Consequently, M.P. No.1 of 2008 is closed.