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Laxmangowda Vs. Maddamma - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtKarnataka High Court
Decided On
Case NumberCRP No. 3000 of 1984
Judge
Reported inILR1985KAR2227
ActsCode of Civil Procedure (CPC) , 1908 - Order 21; Indian Succession Act, 1925 - Sections 214(I)
AppellantLaxmangowda
RespondentMaddamma
Advocates:B.S. Raikote
DispositionRevision petition dismissed
Excerpt:
.....to execution of decree on the ground it was in executable a nullity made without production of succession certificate. the executing court held execution maintainable rejecting the objection as unsustainable. in revision :;though it is not open to an executing court to go behind the decree under execution or examine its legality or correctness, it is well settled that such court is under a duty to examine an objection directed against the validity of the decree under execution on the plea that the decree is a nullity for lack of inherent jurisdiction of the court making it and if such objection is found to be sustainable, to refuse to proceed with the execution.; (b) indian succession act, 1925 (central act no. 39 of 1925) - section 214(1) -- provides procedural safeguard --..........agree with the learned district judge's view that the omission to obtain a certificate renders the decree a nullity. in effect s. 214, succession act, requires the judge to insist upon certain evidence in support of the plaintiff's claim before passing a decree, but the omission to obtain such evidence cannot in my opinion, affect thejurisdiction of the court to try the suit. the provisions of section 214, succession act are no more peremptory than the provisions of section 35, stamp act, or section 49, registration act, which for bid the court to receive certain documents in evidence. if the court does, in breach of those provisions, improperly receive documents in evidence, that is an error which canbe corrected in appeal, but it does not render the decree a nullity. in the same way.....
Judgment:
ORDER

Venkatachala, J.

1. A short, but interesting, question relating to executability of a decree made in a suit without production of a Succession Certificate as required under Section 214(1) of the Indian Succession Act, 1925 ('the Act'), arises fordetermination in this Revision Petition.

2. The Court of Civil Judge at Raichur, to which a decree of the Court of Subordinate Judge, Kurnool, had come by transfer, sought to execute that decree against the judgment debtors therein. But, those judgment debtors raised an objection as to the executability of the decree urging, inter alia, that decree was a nullity, the same having been made without the production of a SuccessionCertificate as required under Section 214 of the Act. The executing Court being of the view that the objection so raised was unsustainable, made an order to the effect that the execution petition is maintainable. Felt aggrieved by that order, the judgment debtors have questioned its validity in this revision petition.

3. On behalf of the judgment debtors (petitioners here) Shri B.S. Raikote contended that the decree under execution, should have been regarded by the executing Court as a nullity as it had been made against the debtors of a deceased person for payment of his debt in favour of a personclaiming on succession to be entitled to the effects of the deceased person without the production of a Succession Certificate as required under Section 214(1)(a)(iii) of the Act.

4.Though it is not open to an executing Court to go behind the decree under execution or examine its legality or correctness, it is well settled that such Court is under a duty to examine an objection directed against the validity of the decree under execution on the plea that that decree is a nullity for lack of inherent jurisdiction of the Court making it and if such objection is found to be sustainable, to refuse to proceed with the execution. Then the question is, when a Court makes a decree for recovery of a debt covered by Section 214(1)(a)(iii) of the Act without the production of a Succession Certificate as required there under, can it be said that it lacked inherent jurisdiction in making such decree, so as to render it a nullity.

5. It was not disputed and, in fact, cannot be disputed, that the Court, which made the decree, had the jurisdiction to entertain the suit relating to the debt, which was the subject matter of the suit, at the instance of the party instituting that suit, and against the parties concerned in the suit. If that is so, it is difficult to think that the Court, when made the decree sought for in the suit, lacked the inherent jurisdiction to make it. No doubt, as urged for the judgment debtors, Section 214(l)(a)(iii) of the Act imposes a duty on the Court not to make a decree in respect of a debt covered by that provision, when a suit is filed there for without the production of a Succession Certificate, in that, it reads thus

'214. (l) No Court shall

(a) Pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or

(b)...........except on the production, by the person so claiming of -

(i) and (ii) .............

(iii) a succession certificate granted under Part X and having the debt specified therein ............'

6. Though the above provision is mandatory in its terms, all that it requires of the Court is not to pass a decreerespecting certain debt, the recovery of which may be sought in the suit. Hence, the Court cannot refuse to entertain a suit respecting such debt or refuse to try or even refuse to make a judgment thereupon. Therefore, it becomes clear that the said provision is meant to serve dual purposes, viz., (1) to safeguard the interests of a debtor from paying the debt into the hands of an unauthorised person, and (2) to safeguard the interests of the deceased creditor's estate enabling the authorised person to receive the payment of the debt. Thus, the provision could, at best, be regarded as a procedural safeguard envisaged for the benefit of a debtor and the deceased creditor's estate. Therefore, if a decree is passed in a suit respecting a debt covered by the said provision without observing the procedural safeguard envisaged therein, the Court passing such decree, in my view, will not have acted without jurisdiction, but will have committed an error of law which may require correction at the instance of an aggrieved party under the provisions in the Code of Civil Procedure, 1908. Till the decree is so corrected, it continues to be good as a decree, though erroneous. However, such a decree can never be regarded as a nullity.

7. Further more, a decree made by a Court respecting a debt covered under Section 214 of the Act withoutconforming to the requirements therein, could be regarded as one which is analogous to a decree made by a Court in a suit respecting a time barred debt without conforming to the requirement of Section 3 of the Limitation Act. If that is so, I receive full support for my view that the decree made without conforming to the requirements of Section 214 of the Act, is not a nullity, from the decision of the Supreme Court in Ittyavira Mathi- v. - Varkey Varkey, : [1964]1SCR495 wherein the nature of a decree made in a suit respecting a time barred debt is adumbrated thus :

'Even assuming that the suit was barred by time, it is difficult to appreciate the contention of Learned Counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would becommitting an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong ; and that even though, it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject - matter and it had the jurisdiction over, the party and, therefore, merely because itmade an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned Counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad- v. - Onkar Pratap Narain Singh, (AIR 1935 PC 5) and contended that since the Court is bound under the provisions of Section 3 of the Limitation Act to ascertain for itself whether the suit, before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that Section 3 of theLimitation Act is peremptory and that it is the duty of the Court to take notice of this provision and give effect to it even though the point oflimitation is not referred to in the pleadings. The Privy Council has not said that where the Court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.'

8. Besides, the view I have taken of the nature of a decree for recovery of a debt covered by Section 214(l)(a)(iii) of the Act without conforming to the requirementsprescribed therein, receives fortification from the observations of Beaumont, C.J., in a Division Bench decision of the High Court of Bombay, respecting a decree passed withoutconforming to the requirement of Section 214, in Abdul Mazid - v. - Shamsherali AIR 1940 Bombay 285 which read :

'I am not prepared to agree with the Learned District Judge's view that the omission to obtain a certificate renders the decree a nullity. In effect S. 214, Succession Act, requires the judge to insist upon certain evidence in support of the plaintiff's claim before passing a decree, but the omission to obtain such evidence cannot in my opinion, affect thejurisdiction of the Court to try the suit. The provisions of Section 214, Succession Act are no more peremptory than the provisions of Section 35, Stamp Act, or Section 49, Registration Act, which for bid the Court to receive certain documents in evidence. If the Court does, in breach of those provisions, improperly receive documents in evidence, that is an error which canbe corrected in appeal, but it does not render the decree a nullity. In the same way the omission to obtain a succession certificate is good ground of appeal, but if the decree is not appealed from, in my opinion it remains a valid decree and cannot be regarded as a nullity.'

9. For the foregoing reasons, the contention raised for the judgment debtors (petitioners here) that the decree under execution in the Court below has to be regarded as a nullity cannot be sustained.

10. In the result, this Civil Revision Petition is dismissed, without being admitted.


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