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2013 DIGILAW 2668 (ALL)

SHAMIM AHMAD v. SHIV NATH KHANDELWAL

2013-10-28

RAN VIJAI SINGH

body2013
Ran Vijai Singh,J.:- Heard Sri Virendra Singh along with Sri N.K. Maurya, learned counsel for the petitioner and Sri S.K. Mishra, learned counsel appearing for the caveator-respondent. 2. By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 2.8.2013 passed by the District Judge, Mau in Civil Revision No. 67 of 2013 ( Dr. Shamim Ahmad Vs. Shiv Nath Khndelwal) and order dated 1.5.2013 passed by the Civil Judge ( Junior Division), Mau in Misc. Case No. 175 of 2007 ( Dr. Shamim Ahmad Vs. Shiv Nath Prasad). Vide order dated 1.5.2013, the petitioner's application filed under Order IX, Rule 13 of the Civil Procedure Code, 1908 ( in short, 'CPC') read with section 17 of the Provincial Small Causes Court Act, 1987 for setting aside the ex parte decree has been rejected, whereas by the subsequent order dated 2.8.2013, the petitioner's revision challenging the aforesaid order has been dismissed. 3. The facts giving rise to this case are that it appears, the respondent-landlord has filed SCC Suit No. 1 of 1996 for payment of arrears of house tax, water tax, amounting to Rs. 2,475/- along with 18% interest since 1985. The aforesaid suit was decreed ex parte on 19.9.1999. Thereafter, the respondent filed execution case no. 13 of 1999 on 28.8.1999 for executing the decree. It is in September, 1999 the present petitioner filed restoration application no. 207 of 1999. It appears, the restoration application was filed without complying the provisions contained in proviso to section 17 of the Small Causes Court Act, 1887. 4. While filing the restoration application, the petitioner had also taken number of grounds, i.e., ( i) the claim is barred by time, ( ii) the court has no jurisdiction to adjudicate upon the matter, etc. The aforesaid restoration application was rejected on account of non-compliance of the proviso to section 17 vide order dated 13.3.2006. 5. Aggrieved by the aforesaid order, the petitioner filed revision no. 34 of 2006. The revision was also dismissed on 10.10.2006. Challenging the aforesaid order, the petitioner filed Writ Petition No. 2537 of 2007 before this Court. That too was dismissed on 16.1.2007. 6. 5. Aggrieved by the aforesaid order, the petitioner filed revision no. 34 of 2006. The revision was also dismissed on 10.10.2006. Challenging the aforesaid order, the petitioner filed Writ Petition No. 2537 of 2007 before this Court. That too was dismissed on 16.1.2007. 6. It appears, thereafter, the execution proceeded and the petitioner filed objection under section 47 of the CPC, reiterating those grounds which had been taken in the restoration application, i.e., ( i) the claim is barred by time, ( ii) the court has not jurisdiction to adjudicate upon the matter, etc. This application was rejected by the executing court on 1.5.2013 on the ground that the executing court cannot go beyond the decree. Challenging the aforesaid order, the petitioner filed revision no. 67 of 2013. The revisional court took the same view and dismissed the revision. 7. Learned counsel for the petitioner contends that as the petitioner had raised the quetion of jurisdiction, therefore, it was incumbent upon the courts below to address itself on that point as the question of jurisdiction goes to the root of the matter and it can be raised at any stage of the proceeding. 8. On being confronted as to whether while challenging the order rejecting the petitioner's restoration application, the petitioner had raised this ground in Writ Petition No. 2537 of 2007, learned counsel for the petitioner contends that although the grounds were taken, but the court has not addressed itself on the same and dismissed the writ petition only on the ground on which the previous orders had been passed by the courts below. On being further confronted as to whether the petitioner has challenged this judgment of the High Court before the Apex Court, learned counsel for the petitioner very fairly submitted that it has not been challenged before the Apex Court. Now in the second round of litigation, the petitioner without complying with the provisions contained in proviso to section 17 of the Small Causes Court Act, is raising the same objection which has already been raised. 9. The revisional court while dismissing the revision placed reliance upon the judgment in the case of Om Prakash Vs. Additional District Judge, Kanpur Nagar ( 2000 All. C.J. 740), wherein following observation has been made by this Court: "It is the question of jurisdiction to pass the decree which is challenged. 9. The revisional court while dismissing the revision placed reliance upon the judgment in the case of Om Prakash Vs. Additional District Judge, Kanpur Nagar ( 2000 All. C.J. 740), wherein following observation has been made by this Court: "It is the question of jurisdiction to pass the decree which is challenged. Thus, it relates back to a stage before the decree was passed. The executing court cannot go behind the decree. By means of the objection that has been raised, the judgment debtor seeks a relief of declaration that the decree being without jurisdiction is void and a nullity. Thus it is not a question related to the execution discharge and satisfaction of the decree. If this question is to be decided under section 47 by the Executing Court then it will be going behind the decree, which it cannot." 10. From the perusal of the observation made above, it appears that the revisional court had considered the question of jurisdiction also, but placing reliance upon the judgment rendered in Om Prakash ( supra) case refused to intervene in the matter and dismissed the writ petition on the ground that the executing court cannot go behind the decree. 11. In view of the foregoing discussions, I do not find any illegality in the impugned order dated 2.8.2013 passed by the District Judge, Mau in Civil Revision No. 67 of 2013 ( Dr. Shamim Ahmad Vs. Shiv Nath Khndelwal) and order dated 1.5.2013 passed by the Civil Judge ( Junior Division), Mau in Misc. Case No. 175 of 2007 ( Dr. Shamim Ahmad Vs. Shiv Nath Prasad). The writ petition is dismissed.