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Jairaj Singh and anr. Vs. Mustafai Begum and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All425
AppellantJairaj Singh and anr.
RespondentMustafai Begum and ors.
Excerpt:
.....closure had been brought on the basis of a valid bond with consideration and no-good and proper defence could be put upon behalf of the minor defendant or any other defendants and if the matter be* not compromised and a decree be passed,,the property would be lost for ever and' the defendants had no means to pay up the amount of the decree within the time which would be fixed by the court in a decree for foreclosure: since jurisdiction is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly. 347:a court has jurisdiction to decide wrong as well as right. such a sanction could only be..........which was suit no. 168 of 1919 instituted on 11th december 1919. in that suit plaintiff 1 jairaj singh remained ex parte. other members of the family who were defendants came to terms of compromise with mt. mustafai begam and an application was made on behalf of ram deo singh minor and other minors by 'one ram karan singh as guardian asking permission of the court to compromise on certain terms.. this application is shown on p. 15 of the supplemental typed book. the application sets forth that the suit for fore closure had been brought on the basis of a valid bond with consideration and no-good and proper defence could be put upon behalf of the minor defendant or any other defendants and if the matter be* not compromised and a decree be passed,, the property would be lost for.....
Judgment:

Bennet, J.

1. This is a first appeal by Jairaj Singh plaintiff 1 himself and his minor brother Ramdeo Singh plaintiff 2. These two plaintiffs are shown by the pedigree in the plaint at p. 7 of the typed book as being two of the five sons of Madho Singh and as members of a family which had several branches collateral with Madho Singh. The plaintiffs and other branches of the family owned certain property in four villages in Jaunpur District and the share of the family of Madho Singh in those villages was one-fifth. The claim of the plaintiffs in the present suit is that they should be placed in possession of the whole one-fifth share of the family of Madho Singh in these villages and that a deed of mortgage dated 12th June 1919 executed by certain members of the family in favour of defendant 1 should be declared invalid.

2. The history of the property in regard to this family is as follows:

3. On 17th August 1915 there was a mortgage by conditional sale for Rs. 8,628 executed by Madho Singh, father of; the plaintiffs, and other collateral members of his family. On 30th August 1916 another mortgage for Rs. 750 was executed also by Madho Singh and others. These mortgages were in favour of defendant 1 Mt. Mustafai Begam. Defendant 1 brought a suit for foreclosure on these mortgages which was Suit No. 168 of 1919 instituted on 11th December 1919. In that suit plaintiff 1 Jairaj Singh remained ex parte. Other members of the family who were defendants came to terms of compromise with Mt. Mustafai Begam and an application was made on behalf of Ram Deo Singh minor and other minors by 'one Ram Karan Singh as guardian asking permission of the Court to compromise on certain terms.. This application is shown on p. 15 of the supplemental typed book. The application sets forth that the suit for fore closure had been brought on the basis of a valid bond with consideration and no-good and proper defence could be put upon behalf of the minor defendant or any other defendants and if the matter be* not compromised and a decree be passed,, the property would be lost for ever and' the defendants had no means to pay up the amount of the decree within the time which would be fixed by the Court in a decree for foreclosure:

Therefore the guardian of the defendants in the capacity of guardian along with other defendants executed a bond in favour of the plaintiff on 12th June 1919 and saved the property from the danger of being foreclosed, for ten years, and the defendants got a -sufficient time to pay up the amount. This compromise has been entered; into for the benefit of the minors.

4. On this application the Subordinate Judge granted permission to the guardian Ram Karan Singh to compromise,, stating that:

As the compromise is in the interest of the minors, it is ordered that permission to enter into a compromise be granted.

5. Accordingly, on 3rd September 1920, the Subordinate Judge passed a decree in this foreclosure suit stating that the compromise had been entered into by Ram Karan Singh on behalf of certain minors and as the other defendants were absent:

against whom an ex parte decree was passed, it is ordered and decreed that a decree be passed in favour of the plaintiff to the effect that she shall remain in possession and occupation of the property claimed, under Order 23, Rule 3, Civil P. C, subject to the conditions laid down in the bond, dated 12th June 1919, and an ex parte decree be passed as against the defendants, who are absent according to the compromise given below.

6. Now the plaintiffs delayed until 6th May 1926 before they questioned this decree and on that date the plaintiffs filed the present suit. The plaintiffs took no steps to have the decree of 3rd September 1920 set aside either by an application for setting aside an ex parte decree on behalf of the major plaintiff Jairaj Singh or by way of appeal by the minor plaintiff Ram Deo Singh. The question before us is whether having allowed this decree to become final, it is open to the plaintiffs now to bring the present suit or whether the present suit is barred by the rule of res judicata under Section 11, Civil P.C.

7. On behalf of the appellant-plaintiffs it was argued by Dr. Katju that the decree of 3rd September 1920 in the suit for foreclosure was a decree which as regards the plaintiff Jairaj Singh, was passed without jurisdiction and therefore it was a nullity and should not be treated as res judicata under the provisions of Section 11, Civil P.C. His argument was that because Jairaj Singh remained ex parte in that foreclosure suit therefore the only decree which the Subordinate Judge was competent to pass against Jairaj Singh was a decree for foreclosure, and that it was not competent to the Subordinate Judge to pass the decree which he did pass, that is, a decree stating that the plaintiff was to remain in possession on the terms of the mortgage executed on 12th June 1919.

8. It is to be noted that as found by the lower Court, a finding with which we are in agreement, Jairaj Singh was not a party to the execution of that mortgage. On the question of jurisdiction we may refer to Hriday Nath Roy v. Ram Chandra Barna Sarma A.I.R. 1921 Cal. 34. In this, the meaning of the word 'jurisdiction' has been discussed at considerable length and we are in entire agreement with the meaning which has been assigned to that word in that judgment. On p. 148 it is stated:

Since jurisdiction is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly. As an authority for this proposition reference may be made to the celebrated dictum of Lord Hobhouse in Malkearjun v. Narhari [1901] 25 Bom. 337 at p. 347:A Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting himself right; and if that course is not taken, the decision however wrong, cannot be disturbed.

9. Applying this dictum to the present case, we are of opinion that although it might be argued that the decision of the learned Subordinate Judge of 3rd September 1920 in the suit for foreclosure was a wrong decision, it cannot be said that he was acting without jurisdiction in making the decree which he did make. It would have no doubt been open to the plaintiffs to question that decree in a Court of appeal. But the plaintiffs have not taken that course and they have come with a subsequent suit and rely on the argument that the decree of 3rd September 1920 was passed without jurisdiction. We consider that this plea is unsound and we consider that the plaintiff Jairaj Singh is bound by the decree of 3rd September 1920 and that as regards him it cannot be set aside in the present suit.

10. Now as regards the minor Ramdeo Singh, he was represented by a guardian Ram Karan Singh in the foreclosure suit of 1920 and that guardian obtained the permission of the Court to compromise their suit and the guardian duly signed the compromise on behalf of the minor. We consider therefore that the minor is also bound by the decree passed in the suit for foreclosure. It was argued that the sanction of the Judge to compromise might be questioned. Such a sanction could only be questioned on the ground that the Judge had failed to apply his mind to the terms of the compromise. We consider from the order of the Subordinate Judge that he did apply his mind to those terms and having considered whether the compromise was to the advantage of the minor he came to the conclusion that it was to his advantage and accordingly gave permission to compromise.

11. The learned Subordinate Judge has dismissed the suit of the plaintiffs holding firstly that they are not entitled to possession and secondly that they are not entitled to redeem, because the mortgage which was embodied in the compromise decree of 3rd September 1920 gives the term of ten years for the mortgage to hold possession and the suit for redemption is therefore premature. We agree with this finding of the lower Court and we dismiss this appeal with costs.

12. As this was a pauper appeal, the court-fee payable to the Government on account of the appeal will be recoverable from the adult appellant Jairaj Singh.


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