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Ali Shah Vs. HusaIn Bakhsh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All588
AppellantAli Shah
RespondentHusaIn Bakhsh and anr.
Excerpt:
.....board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised..........court of competent jurisdiction, and is therefore open to be adjudicated in the present suit. the decree passed in that suit being invalid for want of jurisdiction and nullity, we cannot say that the present plaintiff, as successor in title to rajbibi, was bound to take steps to get it set aside by moans of appeal, or that, because he omitted to do so, it has become binding upon him, and that he is precluded from bringing this suit. accordingly we set aside the decrees passed by the lower courts in this suit, and remand it to the court of first instance under sections 562* and 587+ of act x of 1877 for disposal on the merits, with a direction that the costs of the parties in all the courts shall follow the result.-------------------------------------foot.....
Judgment:

Pearson, J.

1. It seems to us very doubtful whether the doctrine of lis pendens applies in this case. The decree passed by the Munsif in the suit brought by the heirs of Ghulam Husain against the heirs of Rajbibi and her decree-holder, Behary Lal, was passed before the present plaintiff had acquired a title to the rights and interests of Rajbibi aforesaid as auction-purchaser by the confirmation of the auction-sale. Moreover, that doctrine appears to be applicable to cases in which the alienation is of a voluntary nature, and not to an alienee who has bought a property sold in execution of a decree.* Doubtless also there is irresistible weight and force in the last ground of appeal. The rights and interests purchased by the plaintiff at auction-sale, which may be assumed to represent an eight-biswas share, fetched a price of Rs. 15,000. The one and a half biswa claimed in the present suit is valued at Rs. 2,784-6-0. It cannot then be doubted that the value of the three biswas claimed in the suit of Ghulam Husain's heirs exceeded Rs. 1,000, and that the suit was not cognizable by the Munsif. It would be unreasonable to hold that the present plaintiff was bound to intervene in that suit, and to dispute the claim preferred in a Court which had not jurisdiction to dispose of the matter. We must add that ho cannot be bound by a decree which is patently invalid, and for that reason could not bind even the parties to the suit in which it was passed. The question which was tried and determined in that suit is not a res judicata, because the Court which determined it was not a Court of competent jurisdiction, and is therefore open to be adjudicated in the present suit. The decree passed in that suit being invalid for want of jurisdiction and nullity, we cannot say that the present plaintiff, as successor in title to Rajbibi, was bound to take steps to get it set aside by moans of appeal, or that, because he omitted to do so, it has become binding upon him, and that he is precluded from bringing this suit. Accordingly we set aside the decrees passed by the lower Courts in this suit, and remand it to the Court of First Instance under Sections 562* and 587+ of Act X of 1877 for disposal on the merits, with a direction that the costs of the parties in all the Courts shall follow the result.

-------------------------------------Foot Note-----------------------------------

* See, however, Manual Fruval v. Sanagapalli 7 Mad. H.C. Rep. 104, where the doctrine was applied in the case of a sale in execution of a decree pendente lite.

*[Remand of case by Appellate Court.

Section 562: If the Court against whose decree the appeal is made has disposed of the suit upon a preliminary point so as to exclude any evidence of fact which appears to the Appellate Court essential to the determination of the rights of the parties, and the decree upon such preliminary point is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, together with a copy of the order in appeal, to the Court against whose decree the appeal is made, with directions to re-admit the suit under its original number in the register and proceed to investigate the suit on the merits. The Appellate Court may, if it think fit, direct what issue or issues shall be tried in any case so remanded.]

+ [Provisions as to second, appeals.

Section 587: The provisions contained in Chapter XLI shall apply as far as may be to appeals under this Chapter, and to the execution of decrees passed in such appeals.]


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