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Sadashiv Mahadeo Walhekar Vs. Mahomed Yakub Mahomed Saidulla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 344 of 1942
Judge
Reported inAIR1943Bom404; (1943)45BOMLR877
AppellantSadashiv Mahadeo Walhekar
RespondentMahomed Yakub Mahomed Saidulla
Excerpt:
.....passed without jurisdiction-whether executing court can go into question of jurisdiction.;a decree passed by a court without jurisdiction is incapable of execution. it is immaterial whether the court which is executing such decree is the court which passed the decree or is a court to which the decree has been transferred for execution under order xxi, rule 7, of the civil procedure code, 1908. an executing court is, therefore, entitled to go into the question whether the decree sought to be executed was passed by the court without jurisdiction.;jnanendramohan bhaduri v. rabindranath chakrabarti (1932) i.l.r. 60 cal. 670 : s.c. 35 bom. l.r. 327, p.c., followed.;gora chand haldar v. profulla kumar roy (1925) i.l.r. 53 cal. 166, f.b., referred to.;jagannath v. shivnarayan (1936) 38..........which a decree had been transferred for execution under order xxi, rule 7, could not go behind the decree and question the jurisdiction of the court which had passed it.2. on the question whether a court executing a decree can go behind the decree, there has been a conflict, of decisions as noticed in jagannath v. shivnarayan. so far as the bombay high court is concerned, apart from the decision of a single judge in bajirao v. sakharam (1930) 33 bom. l.r. 463, it has always been held that the court to which the decree has been transferred for execution under order xxi, rule 7, cannot go behind the decree and question the jurisdiction of the court which passed it. in gora chand haldar v. profulla kumar roy (1925) i.l.r. 53 cal. 166, f.b., however, a full bench of the calcutta high court.....
Judgment:

Sen, J.

1. This application arises out of a darkhast in which the only point raised was that the Small Cause Court at Poona which passed the decree under execution had no jurisdiction to try the suit and that, therefore, the decree being a nullity it was not capable of being executed. The decree was transferred to the Court of the Extra Joint Subordinate Judge Poona, for execution, and that Court proceeded with the execution under Order XXI, Rule 7. The Court held that it had no power to question the jurisdiction of the Poona Small Cause Court in entertaining the suit and making a decree; and it relied for this proposition on Hari Govind v. Narsingrao Konherrao I.L.R. (1913) 38 Bom. 194 and Jagannath v. Shivnarayan : AIR1937Bom19 . In those cases it had been held that the Court to which a decree had been transferred for execution under Order XXI, Rule 7, could not go behind the decree and question the jurisdiction of the Court which had passed it.

2. On the question whether a Court executing a decree can go behind the decree, there has been a conflict, of decisions as noticed in Jagannath v. Shivnarayan. So far as the Bombay High Court is concerned, apart from the decision of a single Judge in Bajirao v. Sakharam (1930) 33 Bom. L.R. 463, it has always been held that the Court to which the decree has been transferred for execution under Order XXI, Rule 7, cannot go behind the decree and question the jurisdiction of the Court which passed it. In Gora Chand Haldar v. Profulla Kumar Roy (1925) I.L.R. 53 Cal. 166, F.B., however, a Full Bench of the Calcutta High Court held that where a decree presented for execution was made by a Court which apparently had no 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, and that within these narrow limits the executing Court was authorised to question the validity of a decree. Walmsley J. in giving judgment of the Court emphasised the distinction between a case in which the Court had no jurisdiction to pass a decree and one in which the Court having jurisdiction had exercised it erroneously, and thought that the apparent conflict in reported cases was largely due to failure to keep this distinction clearly in view. This decision was followed in Rabindranath Chakrabarti v. Jnanendramohan Bhaduri I.L.R. (1930) Cal. 1018, which was a case of an award filed by the arbitrator on the Original Side of the High Court, two petitions having been filed by the parties containing certain terms of settlement in accordance with which they wanted the award to be varied. The learned Judge had thereupon made a decree declaring the award to be modified by the said terms of the settlement. This decree the executing Court had refused to execute, holding it to be a nullity. Their Lordships held that when an award was made under the Indian Arbitration Act it may be ordered to be filed, and execution taken on it as if it was a decree, but that the Court could neither pronounce a judgment on it nor make a decree, and that, therefore, the executing Court was entitled to refuse to execute such a decree on the ground that it had been made without jurisdiction. There was an appeal to the Privy Council, and in jnanendramohan Bhaduri v. Rabindranath Chakrabarti (1932) I.L.R. 60 Cal. 670 their Lordships affirmed the order of the High Court agreeing that the decree having been made without jurisdiction was a nullity and was, therefore, incapable of execution. There can be little doubt that the matter is now concluded by this pronouncement of the Privy Council to the effect that if the Court which has made the decree has acted without jurisdiction in making it, such decree is incapable of execution; and it becomes immaterial whether the Court which is executing the decree is the Court which passed the decree or is a Court to which the decree has been transferred for execution.

3. The reasoning adopted in jagannath v. Shivnarayan was based mainly on the omission in Order XXI, Rule 7, of the words ' or of the jurisdiction of the Court which passed it' which occurred in the old Section 225 of the Code after the words ' or of the copies thereof '. The omission of these words had been construed by Scott C.J. in Hari Govind v. Narsingrao Konherao (1913) I.L.R. 38 Bom. 194 as meaning that the executing Court had no power under the present Code to question the jurisdiction of the Court which passed the decree under execution. The importance of this construction now ceases in view of the decision of the Privy Council, which, though given in 1932, does not appear to have been cited before the Bench which decided Jagannath v. Shivnarayan four years later. If the 'decree' sought to be executed is a nullity, it seems clear that the provisions of neither Section 38 of the Code nor of Order XXI can apply to it and this conclusion must involve the proposition that it should be within the powers of the executing Court to go into the question whether the decree before it is a nullity owing to the fact that the Court which made the decree had no jurisdiction to do so.

4. It seems to me, therefore, that Jagannath's case and the previous Bombay cases to the same effect have been overruled by jnanendramohan Bhaduri v. Rabindranath Chakrabarti, and that the lower Court has wrongly held that it was powerless to question the jurisdiction of the Small Cause Court at Poona in making the decree before it.

5. The rule will, therefore, be made absolute with costs, and the matter will go back to the trial Court for decision as to whether there was a want of jurisdiction in the said Small Cause Court in making the said decree and for dealing with the decree thereafter in accordance with law.


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