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Jagannath Fakirchand Vs. Shivnarayan Ramlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Cross Appeal Nos. 220 of 218 of 1933
Judge
Reported inAIR1937Bom19; (1936)38BOMLR1023; 166Ind.Cas.961
AppellantJagannath Fakirchand;shivnarayan Ramlal
RespondentShivnarayan Ramlal;jagannath Fakirchand
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 7 - decree-execution- decree passed without jurisdiction-executing court cannot question jurisdiction.;the court to which a decree has been transferred for execution under order xxi, rule 7, of the civil procedure code, 1908, cannot go behind the decree and question the jurisdiction of the court which passed it.;hart govind v. narsingrao konherrao (1913) i.l.r. 38 bom. 194 : s.c. 16 bom. l.r. 30, zemindar of eltiyapuram v. chidambaram chetty (1920) i.l.r. 43 mad. 675, ghulam mohammad v. mst. fazal nishan (1913) i.l.r. 13 lah. 25, syed ekram hussain v. musammat umatul rasul (1930) i.l.r. 9 pat. 829 and s. a. nathan v. s.r. samson (1931) i.l.r. 9 ran. 480 followed.;gora chand haldar v. prafulla kumar roy (1925) and..........of the rule. in subramania aiyar v. vaithinatha aiyar i.l.r. (1913) mad. 682 it was held that 2 decree passed after the death of the defendant and before his legal representative was brought on the record is a nullity, and that an objection on that ground could be taken in the execution proceedings. this was a decision of a single judge. the judgment is a very short one and does not discuss at any length the authorities on the point nor does it discuss the effect of the amendment made in the code of 1908. as i shall show later, this decision was referred to in the course of the arguments in a subsequent madras case in zamindar of ettiyapuram v. chidambaram chetty i.l.r. (1920) mad. 675 in which a full bench of the madras high court took the contrary view. the ruling principally relied.....
Judgment:

N.J. Wadia, J.

1. These are cross-appeals arising out of an order made by the First Class Subordinate Judge of Poona, in darkhast No. 1842 of 1932. Appeal No. 218 has been filed by the judgment-debtor and Appeal No. 220 by the decree-holder.

2. A dispute with regard to some dealings between the plaintiff and the defendant was referred to arbitration. An award was made by which the defendant was to pay Rs. 23,000 and interest by instalments. There was a default clause under which, besides the personal liability of the defendant, a charge was laid on some immoveable property of his in the Baramati taluka of the Poona District. The award was filed in the Ahmednagar Court and a decree was passed by that Court. There was a default in payment and the plaintiff got the decree transferred for execution to the Poona Court and filed an application for execution in that Court asking for the recovery of the money by attachment and sale of the property in the Poona District on which a charge had been laid under the decree. The defendant judgment-debtor contended in the execution proceedings that the property on which the charge had been laid being in the Poona Court and outside the jurisdiction of the Ahmednagar Court, that Court had no jurisdiction to make the decree. The learned Subordinate Judge held that he as the executing Court had no power to go into the question of the jurisdiction of the Court which had passed the decree, and on this ground he directed that the darkhast should proceed. He stated that if it had been necessary for him to decide the question whether the Ahmednagar Court had jurisdiction to -pass the decree, he would have held that that Court had no jurisdiction to impose a charge on the immoveable property in the Poona District.

3. The only question which arises in these appeals is whether a Court to which a decree has been transferred for execution under Order XXI, Rule 7, of the Code of Civil Procedure, can go behind the decree and question the jurisdiction of the Court which passed the decree.

4. There has been some conflict of authority on this question. Order XXI, Rule 7, appears to suggest that an executing Court has no such power, and this inference is strengthened by a reference to the corresponding provision prior to the amendment of the Civil Procedure Code in 1908. Section 225 of the Code of 1882 contained the words ' or of the jurisdiction of the Court which passed it' after the words ' or of the copies thereof '. These words were omitted in the amended Code of 1908, and the clear effect of the omission would appear to be that the legislature intended that the executing Court should have no power to question the jurisdiction of the Court which had passed the decree under execution. Even after the amendment, however, conflicting views have been taken by the different High Courts with regard to the interpretation of the rule. In Subramania Aiyar v. Vaithinatha Aiyar I.L.R. (1913) Mad. 682 it was held that 2 decree passed after the death of the defendant and before his legal representative was brought on the record is a nullity, and that an objection on that ground could be taken in the execution proceedings. This was a decision of a single Judge. The judgment is a very short one and does not discuss at any length the authorities on the point nor does it discuss the effect of the amendment made in the Code of 1908. As I shall show later, this decision was referred to in the course of the arguments in a subsequent Madras case in Zamindar of Ettiyapuram v. Chidambaram Chetty I.L.R. (1920) Mad. 675 in which a full bench of the Madras High Court took the contrary view. The ruling principally relied on in support of the view that the executing Court is entitled to go into the question of the jurisdiction of the Court which passed the decree is the full bench decision in Gora Chand Haldar v. Prafulla Kumar Roy I.L.R. (1925) Cal. 166. Walmsley J., in giving the judgment of the Court, emphasised the distinction between a case in which the Court had no jurisdiction to pass the decree and one in which the Court, having jurisdiction, had exercised it erroneously. It was held that the correct view, and the view for which there was a strong current of authority, was that where the decree presented for execution was made by a Court which apparently had not the jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree, the executing Court was entitled to refuse to execute it on the ground that it was made without jurisdiction. No authorities were cited nor was the effect of the amendment made in 1908 in Order XXI, Rule 7, of the Code, considered. The correctness of this decision and the difficulty created by the use of the word ' apparent' have been pointed out in the full bench decision of the Rangoon High Court in S. A. Nathan v. S. R. Samson I.L.R. (1931) 9 Ran. 480 to which I shall refer later. This decision has also been doubted in a subsequent case of the Calcutta High Court decided by a single Judge in Kalicharan Singha v. Bibhutibhushan Singha I.L.R. (1932) Cal. 191.

5. The only decision of this High Court cited in support of this view is the decision of Madgavkar J. in Bajirao v. Sakharam (1930) 33 Bom. L.R. 463. It was held in that case that an executing Court cannot question the decree sought to be executed except on the score of patent want of jurisdiction. The decision in Gora Chand Haldar v. Prafulla Kumar Roy was relied on in support of this view. The case was not under Order XXI, Rule 7, of the Civil Procedure Code. The decision was that of a single Judge, and the previous decision of this Court in Hari Govind V. Narsingrao Konherrao I.L.R. (1913) 38 Bom. 194 was not referred to at all. As has been pointed out by the learned trial Judge in his judgment, the actual decision in that case was that the decree, the execution of which was opposed on the ground of want of jurisdiction, was executable, and it was only incidentally in stating the general rule that the exception to it on the score of patent want of jurisdiction was referred to.

6. These are the only three decisions to which we have been referred in support of the contention that the executing Court has the power to go into the question whether the Court which passed the decree had jurisdiction to do so. On the other hand, there is a long series of decisions in support of ?the opposite view.

7. Even before the amendment of 1908 this Court had, in Chogalal v. Trueman I.L.R. (1883) 7 Bom. 481 taken the view that the Court to which a decree had been sent for execution could not go into the question of the jurisdiction of the Court which had passed the decree. West J. remarked in the course of his judgment (p. 483) :-

The intention of the Civil Procedure Code, as shown by sections 239 and 242, is manifestly that a Court to which a decree is sent for execution by another under the same Government, and the same law of procedure, shall not take on itself the trial of whether the Court which passed the decree had jurisdiction to make it or not. In case of doubt, the Court where execution is sought may adjourn the execution in order to enable the party interested to make an application to the Court passing the decree. Thence the applicant may of course proceed by appeal, if dissatisfied, in the ascending scale of Courts until he reaches the highest of the province in which the decree was made. It is intended that the decree of this Court, or of the lower Court at which proceedings in the suit have ceased, shall be conclusive. A contrary rule would virtually subject the decrees of the Civil Courts to revision and reversal by superior Courts (or even equal or inferior ones) to which they are not subordinate. When the time allowed for an application, if any, has elapsed, the Court to which the decree has been sent, must accept it as a valid one without going into further inquiries, or overruling the judgment of the Court which tried the case.

8. There are, however, decisions of this Court and of other High Courts in which a different interpretation had been put on Section 225 of the Code of 1882. The amendment made in 1908, in my opinion, made it clear that the executing Court had no power to question the jurisdiction of the Court which passed the decree.

9. In Hart Govind v. Narsingrao Konherrao it was held by a division bench of this Court that, under Order XXI, Rule 7, of the Civil Procedure Code (Act V of 1908), the executing Court has no power to question the jurisdiction of the Court which passed the decree under execution. In the course of his judgment, Scott C. J. said (p. 198) :-

There are cases which were decided under the Code of 1882 in which the opinion was expressed that it is open for an executing Court to consider whether, the decree sent, to it for execution was passed by a Court having jurisdiction to pass it. The dictum to that effect in the Bombay Reports is to be found in Haji Musa Haji Ahmed v. Purntanand Nursey and it was accepted in Imdad Ali v. Jagan Lal I.L.R. (1895) All. 478. The ratio of the dictumI.L.R. (1890) 15 Bom. 216 in Haji Musa Haji Ahmed v. Purmanand Nursey was that the Code recognizes in section 225 the right of the executing Court to inquire into the jurisdiction of the Court which passed the decree. That section, however, has been altered in the Code of 1908, for the words : ' or of the jurisdiction of the Court which passed it,' have been omitted in Order XXI, Rule 7, and we think that the inference is clear that the executing Court has no power under the present Code to question the jurisdiction of the Court which passed the decree under execution.

10. There has been a series of decisions of other High Courts in which the same view has been taken. In Zamindar of Ettiyapuram v. Chidambaram Chetty I.L.R. (1920) Mad. 675 a full bench of the Madras High Court agreed with the view taken in Har Govind v. Narsingrao Konherrao. In that case three questions were reference to the full bench : (1) whether Section 21 of the Code of Civil Procedure govern! cases of want of territorial jurisdiction? (2) whether Section 21 is applicable to execution proceedings? and (3) whether a party who does not raise objection to jurisdiction when a decree is made absolute is not entitled to plead in exe cution that the order was passed without jurisdiction In that case the Judge who made the reference had said that there was no doubt that the final decree in respect of which the application for execution had been made was passed without jurisdiction. Wallis C. J., after answering the first two questions referred to the full bench, said (p. 687) :-

Assuming, however, that section 21 does not apply, I am still of opinion that the present decree cannot be questioned in execution. An objection to the juris-diction is a ground for setting aside the decree and is not one of those questions relating to the ' execution, discharge or satisfaction of the decree' which are required by section 47 to be dealt with in execution. The provision in section 22,c of the old Code that a Court might proceed to execute decrees transferred to i without requiring further proof, among other things, of the jurisdiction of the Court which passed the 'decree lent some colour to the view that it was open to; Court to which a decree had been sent for execution to go into the question whether the Court which passed the decree had jurisdiction to do so, and influenced the decisions which are referred to in the order of reference. These words, however have been omitted advisedly in the corresponding Order XXI, Rule 7 of the new Code

Without referring to the statement of objects and reasons, which is not permissible, Krishna Ayyangar v. Nallapemmal Pillai (1919) L.R. 47 I. A. 33 : 22 Bom. L.R. 568 we may, I think, infer that these words were omitted in the new Code because it was felt that it was not for th< executing Court to go into questions of the jurisdiction of the Court which passed the decree, at any rate when, as in the present case, that Court was an ordinary Court in British India governed by the Code.

11. It is to be noted that in this case it had been found that the Court passing the decree had no territorial jurisdiction at the time it passed the decree. This would therefore be a case of a patent or apparent want of jurisdiction. The contrary view which had been taken in the earlier Madras case-Subrammic Aiyar v. Vaithinatha Aiyar had been referred to in the arguments of the learned counsel though not in the judgment. The same view was taken ii Ghulam Mohammad v. Mst. Fazal Nishan I.L.R. (1931) 13 Lah. 25. That again was a case of want of jurisdiction on the part of the Court passing the decree which was apparen on the face of the record. A Subordinate Judge of the Fourth Class, whose pecuniary jurisdiction was limited to Rs. 1,000, had passed a compromise decree for pre-emption on payment of Rs. 1,100. In execution an objection was raised that the decree was a nullity as it had been passed by a Court withot jurisdiction. It was held that the words 'or of the jurisdiction of the Court which passed it' which existed in Section 225 of the old Code of Civil Procedure having been omitted in Order XXI, Rule 7, of the new Code of 1908, the exe cuting Court had no power to question the validity of the decree on the ground of want of jurisdiction of the Court which passed it. The decisions in Har Govind v. Narsingrao Konherrao and Zamindar of Ettiyapuram v. Chidambajam Chetty were referred to and followed. In Syed Ekram Hussain v. Musammat Umatul Rasul I.L.R. (1930) Pat. 829 the same question was considered and the view taken in. Hari Govind v. Narsingrao Konherrao was quoted with approval and followed.

12. The question was again very fully considered in S. A, Nathan v. S.R. Samson by a full bench of the Rangoon High Court in which all the authorities, including Gora Chand Haldar v. Prafulla Kumar Roy I.L.R. (1925) Cal. 166 were considered and the same conclusion was arrived at as in Hari Govind v. Narsingrao Konherrao. It was held that a subsisting decree passed by a duly constituted Court that has not been set aside in proceedings by way of appeal, revision, review or otherwise by due process of law, is not to be treated as a mere nullity, but is binding and conclusive against the parties thereto duly implead-ed. in the suit. A Court to which such a decree has been transferred for execution must take the decree as it stands, and is not entitled to question the validity of the decree upon the ground that the decretal Court had no jurisdiction, territorial, personal or pecuniary, to pass it. In the course of the judgment, the decision of the full bench of the Calcutta High Court in Gora Chand Haldar v. Prafulla Kumar Roy was discussed and its correctness doubted. The correctness of this latter decision has also been doubted in a later case of that Court-Kalicharan Singha v. Bibhutibhushan Singha I.L.R. (1932) Cal. 191.

13. In my opinion the language of Order XXI, Rule 7, and the deliberate omission of the words ' or of the jurisdiction of the Court which passed it' when the Code was amended in 1908, make it clear that it was not the intention of the Legislature that the Court to which a decree has been sent for execution should have power to inquire into the question of the jurisdiction of the Court which passed the decree, and there is a long series of decisions both of this Court and of other High Courts in support of this view. The contrary view which has been taken in Subramania Aiyar v. Vaithinatha Aiyar and in Gora Chand Haldar v. Prafulla Kumar Roy has been dissented from in subsequent decisions of those Courts and can no longer be considered as good law.

14. The learned Subordinate Judge was therefore correct in the view which he took that the defendant judgment-debtor could not in execution raise the question of the jurisdiction of the Ahmednagar Court. Appeal No. 218 of 1933 must, therefore, be dismissed with costs.

15. Appeal No. 220 of 1933 has been filed by the decree-holder. That appeal is directed against the finding of the learned First Class Subordinate Judge on the first issue whether the Ahmednagar Court which passed the decree had no jurisdiction to pass it. That finding, however, was only given in case the finding on the second issue was not upheld. It was a mere opinion and it was not necessary for the decree-holder to appeal against it. That appeal also will, therefore, be dismissed with costs.

Macklin, J.

16. The only question for consideration in these cross-appeals is the extent to which the executing Court may go behind the decree. It has ordinarily been an accepted principle that an executing Court cannot do so; but in the present case reliance has been placed primarily upon a remark by Madgavkar J., occurring in Bajirao v. Sakharam (1930) 33 Bom. L.R. 463 to the effect that the general rule is that an executing Court cannot question the decree ' except on the score of patent want of jurisdiction '. In this matter the jurisdiction of the trial Court was called in question during the execution proceedings; but the executing Court held that it could not consider the objection, though in its opinion the trial Court had no jurisdiction. So far as this High Court is concerned there is no reported decision which justifies the observations of Madgavkar J. just quoted; and though the learned Judge himself does not refer to them, Han Govind v. Narsingrao Konherrao I.L.R. (1913) 38 Bom. 194 Chogalal v. Trueman I.L.R. (1883) Bom. 481 and Kasturshet Javershei v. Rama Kanhoji I.L.R. (1885) 10 Bom. 65 are all authorities to the contrary. In general it can be argued that the amendment of the old Section 225 of the Civil Procedure Code by the present Order XXI, Rule 7, which omits the words ' or of the jurisdiction of the Court which passed it,' is almost conclusive of the intention of the Legislature to make it impossible for an executing Court to question the jurisdiction of the trial Court for any reason whatever. Moreover, as has been pointed out more than once, to permit an executing Court to question the jurisdiction of a trial Court is tantamount to giving the executing Court powers of appeal or of superintendence over the trial Court which in certain cases may well mean the exercise of superintendence over a superior Court by an inferior Court.

17. There is, however, some authority to be found for the contrary view in the decision given in Goya Chand Haldar v. Prafulla Kumar Roy I.L.R. (1925) Cal. 166 Subramania Aiyar v. Vaithinath Aiyar I.L.R. (1913) Mad. 682 and Jungli Lall v. Laddu Ram Marwari (1919) 4 P. L. J. 240. In the last two cases no reasons are given. In the first of those cases, though it was a decision of the full bench, and only one Judge has given reasons and the four other Judges agreed without giving reasons; and the learned Judge who delivered the judgment of the Court merely said (p. 173):-

It would be tedious to examine the numerous decisions in detail, and it -would not lead to any useful result. I think it may be said that the correct view, and the view for which there is a strong current of authority, is that where the decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction.

This decision, though it is a decision of the full bench, was strongly dissented from in Kalicharan Singha v. Bibhutibhushan Singha I.L.R. (1932) Cal. 191. This was a decision of a single Judge; but full reasons were given in the judgment and moreover it was based upon the full bench case of S. A. Nathan v. S. R. Samson I.L.R. (1931) Ran. 480 in which the same case of the Calcutta High Court was dissented from and the Bombay case of Kasturshet Javershet v. Rama Kanhoji I.L.R. (1885) 10 Bom. 65 approved. In the circumstances, I do not think it necessary for me to refer to any other authorities. I hold that we are bound by the authority of the previous decisions of benches of this High Court and that both the appeals must be dismissed.


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