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2019 DIGILAW 293 (ALL)

Santosh Kumari v. Prem Narain Verma

2019-02-05

DINESH KUMAR SINGH

body2019
JUDGMENT : Dinesh Kumar Singh, J. The present writ petition under Article 227 of the Constitution of India has been filed to set aside the order dated 1.1.2019 passed by the IInd Additional District Judge/Special Judge (SC/ST) Act, Lucknow in Civil Revision No.84 of 2017 filed by the petitioner feeling aggrieved by the order passed by the Additional Civil Judge (Senior Division), Lucknow on 31.5.2017 in Misc. Case No.245 of 2016, whereby the executing court had dismissed the objections of the defendant/judgment debtor filed under Section 47 C.P.C. 2. The petitioner is the tenant/judgment debtor in a suit for possession and damages being Regular Suit No.167 of 1999. The trial court decreed the suit on 31.5.2011. Aggrieved by the aforesaid judgment and decree, the petitioner/defendant filed first appeal bearing no.140 of 2011 in the court of Additional District Judge, Court No.17, Lucknow, which too was dismissed vide judgment and order dated 19.3.2016. After the judgment and decree, the decree holder has filed Execution Case No.10 of 2011. The petitioner has filed Second Appeal No.260 of 2016 before this Court along with an application for condonation of delay. In the execution case, the judgment debtor has filed an objection under Section 47 C.P.C., which was numbered as 245 of 2016. The executing Court vide order dated 31.5.2017 had rejected the aforesaid objection on the ground that the executing court does not have power to go behind the decree and in respect of the question of jurisdiction of the trial court, a specific issue was framed before the trial court as well as before the appellate court and both the courts below have held that the trial court had jurisdiction to hear and decide the suit. It is further held that the second ground that the trial court had passed the judgment and decree on the amended plaint. However, there was no order passed by the trial court to amend the plaint. It is further held that the second ground that the trial court had passed the judgment and decree on the amended plaint. However, there was no order passed by the trial court to amend the plaint. This ground cannot be looked into at the stage of execution and, therefore, the trial court has rejected the aforesaid objection filed under Section 47 C.P.C. The revisional court has also dismissed the revision by the impugned judgment and order on the ground that the executing court cannot go behind the decree and is not entitled to question that jurisdiction of the court which passed it, unless it is shown that the decree was passed by a court having inherent lack of jurisdiction, which would make a decree nullity. It has further been held that the first appellate court has upheld the judgment and decree including jurisdiction of court and, therefore, the objections filed under Section 47 C.P.C. cannot be entertained and the trial court had rightly rejected that. 3. Learned counsel for the petitioner submits that if a judgment and decree obtained by fraud or has been passed by a court which lacks jurisdiction, would be a nullity and the objection regarding the judgment and decree being a nullity, can be taken at any stage including at the time of execution. He further submits that the suit property is of sixty years old, therefore, the provisions of U.P. Act No.13 of 1972 were not applicable and the judgment and decree passed by the trial court, which did not have the jurisdiction, was a nullity. He also submits that the amendment in the plaint was carried out by the plaintiff without there being any order passed by the trial court and, therefore, the judgment and decree which was obtained by the plaintiff was result of fraud by the plaintiff, therefore, it is a nullity. 4. In support of his contentions, learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kiran Singh and others vs. Chaman Paswan and others, (1954) AIR SC 340. He has placed reliance on paragraph six of the aforesaid judgment, which reads as under:- "6. 4. In support of his contentions, learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kiran Singh and others vs. Chaman Paswan and others, (1954) AIR SC 340. He has placed reliance on paragraph six of the aforesaid judgment, which reads as under:- "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 Section 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 Section 11 of the Suits Valuation Act on this position." 5. The second judgment relied upon by the learned counsel for the petitioner is United India Insurance Company Limited vs. Rajendra Singh and others, (2000) 3 SCC 581 . In paragraphs 13 and 14 of the aforesaid judgment, it has been held as under:- "13. In S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 the two-Judge Bench of this Court held: "Fraud avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree -- by the first court or by the highest court -- has to be treated as a nullity by every court, whether superior or inferior. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree -- by the first court or by the highest court -- has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." 14. In Indian Bank v. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550 another two-Judge Bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus: (SCC p. 563, para 23) "23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order." 6. The third case relied upon by the learned counsel for the petitioner is C. Gangacharan v. C. Narayanan, (2000) AIR SC 589. In paragraph four of the aforesaid judgment, Hon'ble supreme Court held as under:- "4. It is now well settled that the executing court cannot go behind the decree of a court of competent jurisdiction except when the decree is void ab initio or without jurisdiction. In the present case, the High Court on 27-8-1987, as is evident from the passage quoted hereinabove, had given a categorical finding to the effect that the respondent herein was only a trustee and the case was governed by Section 82 of the Indian Trusts Act. Section 4 which contains the prohibition to recover the property held benami expressly provides in sub-section (3), clause (b) that the said section is not to apply, inter alia, in a case where the property is held in the name of a trustee. In view of the finding of the High Court in its judgment of 27-8-1987 that the property was being held in the name of the respondent as a trustee, the question of the respondent invoking the provisions of the Benami Transactions Ordinance or the Act did not arise. In view of the finding of the High Court in its judgment of 27-8-1987 that the property was being held in the name of the respondent as a trustee, the question of the respondent invoking the provisions of the Benami Transactions Ordinance or the Act did not arise. The provisions of the Act did not prohibit a suit being filed against a trustee for the recovery of the trust property." 7. The last case relied upon by the learned counsel for the petitioner is Budhia Swain and others vs. Gopinath Deb and others, (1999) 4 SCC 396 . Paragraphs 8 and 9 of the aforesaid judgment read as under :- "8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence. 9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni v. Kali Nath, (1962) AIR SC 199 it was held: "The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have session of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it." 8. On the other hand, learned counsel for the respondents/decree holders has argued that two issues were framed with respect to the jurisdiction before the trial court as issues no.8 and 9, which read as under :- "Whether the suit was barred under the provisions of Small Causes Court Act; and Whether the trial court has jurisdiction to entertain and decide the suit." 9. Both these issues were decided against the defendant. The first appellate court while deciding the appeal had also framed three issues, which read as under:- "1. Whether the plaintiff was entitled for possession of the suit property; and 2. Whether the suit was barred under the previsions of the Small Causes Court Act; and 3. Whether there was mis-joinder of parties." 10. All these issues were decided against the defendant. 11. Learned counsel for the respondents submits that it is well settled that the executing court can neither go behind the decree nor would act as an appellate court while executing the decree. He further submits that when the trial court had specifically framed the issues regarding the jurisdiction which was decided against the defendant and the first appellate court upheld the decision on this point, the objection filed under Section 47 C.P.C. was not maintainable. He also submits that the second ground that the decree was obtained by fraud inasmuch as the plaint was amended without the leave of the court, has no force. He also submits that the second ground that the decree was obtained by fraud inasmuch as the plaint was amended without the leave of the court, has no force. The defendant/petitioner has participated in the proceedings all through and this objection was never raised at any point of time and it is wholly incorrect to contend that the plaint was amended without the leave of the court. 12. In support of his contentions, learned counsel for the respondents has placed reliance upon the judgment of the Hon'ble Supreme Court rendered in the case of Brakewel Automotive Components (India) Pvt. Ltd. vs. P.R. Selvam Alagappan, (2017) AIR SC 1577. In paragraphs 19 to 22, it has been held as under:- "19. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no intervening developments as well to render the decree unexecutable. 20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. 21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, (1970) 1 SCC 670 : AIR 1970 SC 1475 : (1971) 1 SCR 66 in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: "A Court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction 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: where the objection as to the 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 objection as to the validity of the decree even on the ground of absence of jurisdiction." 22. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534 : AIR 2001 SC 2552 , while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court there under are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executability of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view." 13. I have considered the submissions of parties carefully and also perused the impugned judgment as well as the judgments relied upon by the counsel representing the parties. 14. From the judgment and decree passed by the trial court, it is clear that issues no.8 and 9 were framed in respect of the jurisdiction of the trial court. The appellate court had also framed one issue regarding the jurisdiction of the trial court. Both the courts below have ruled against the defendant/petitioner and had held that the trial court had jurisdiction to entertain and decide the suit. The executing court does not sit in appeal over the findings recorded by the trial court or the appellate court as the case may be. The executing court cannot go behind the decree when the issue was specifically framed regarding the jurisdiction and it got decided against the defendant. The defendant cannot be permitted to take the very same ground in execution proceedings by filing an application under Section 47 C.P.C. to contend that the trial court did not have jurisdiction to entertain the suit and, therefore, the decree passed by the trial court was without jurisdiction and the same cannot be executed. The defendant cannot be permitted to take the very same ground in execution proceedings by filing an application under Section 47 C.P.C. to contend that the trial court did not have jurisdiction to entertain the suit and, therefore, the decree passed by the trial court was without jurisdiction and the same cannot be executed. After the issue was framed and the parties lead their evidence and argued the matter and got decided by the trial court and the first appellate court, the executing court is not expected to decide the same issue again while executing the decree in objection filed under Section 47 C.P.C. Thus, I do not find any substance in the submission of learned counsel for the petitioner/judgment debtor that the decree passed by the trial court was without jurisdiction and, therefore, it cannot be executed. 15. The second ground that the judgment and decree was passed on the amended plaint which was amended without leave of the court, has no force. The petitioner has filed objection to the amendment application and there is no material on record on the basis of which it can be said that some fraud was played with the trial court and the judgment and decree was obtained as an act of fraud. 16. I, therefore, do not find any substance even in the second ground and I hold that the executing court and the revisional court have correctly decided the issue and rightly rejected the objection of the petitioner under Section 47 C.P.C. 17. In view of the aforesaid, I do not find any merit and substance in the present writ petition, which is hereby dismissed.