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Bisandas and ors. Vs. Nirmal Kumar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 215 of 1957
Judge
Reported inAIR1959MP34
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 115; Constitution of India - Article 227
AppellantBisandas and ors.
RespondentNirmal Kumar
Appellant AdvocateA.L. Halve and ;G.C. Koshal, Advs.
Respondent AdvocateR.S. Dabir, Adv.
DispositionRevision allowed
Cases ReferredKiran Singh v. Chaman Paswan
Excerpt:
- - chaman paswan, air 1954 sc 340 (c), observed as below :it is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings......nirmalkumar against the applicants, bisandas, tekchand and shcwandas, in the court of third civil judge, sagar, for recovery of rs. 3,400/- on account settled or alternatively for dissolution and accounts of partnership. after the parties led evidence, suit was fixed for arguments on 15-4-1957. on that date, it was adjourned to 16-4-1957 to allow the parties to prepare arguments. on 15-4-1957, however, the applicants moved the district judge, jabalpur, for transfer of the suit to another court. on the same date, they sent a telegram to their counsel at sagar intimating to him that an application for transfer was filed before the district judge and he should get the suit adjourned. the application for transfer was taken up by the district judge on 16-4-1957 when he passed an order.....
Judgment:

G. P. Bhutt, J.

1. This revision has been referred to a larger Bench at the instance of Tare J. before whom it was placed for hearing.

2. The revision arises out of civil suit No. 39-A of 1954 which was instituted by the non-applicant Nirmalkumar against the applicants, Bisandas, Tekchand and Shcwandas, in the Court of Third Civil Judge, Sagar, for recovery of Rs. 3,400/- on account Settled or alternatively for dissolution and accounts of partnership. After the parties led evidence, suit was fixed for arguments on 15-4-1957. On that date, it was adjourned to 16-4-1957 to allow the parties to prepare arguments. On 15-4-1957, however, the applicants moved the District Judge, Jabalpur, for transfer of the suit to another Court. On the same date, they sent a telegram to their counsel at Sagar intimating to him that an application for transfer was filed before the District Judge and he should get the suit adjourned. The application for transfer was taken up by the District Judge on 16-4-1957 when he passed an order that the trial Court might hear arguments but should defer delivery of judgment till disposal of the application.

3. The trial Court declined to adjourn the suit on 16-4-1957 on the applicants' telegram to their counsel, and heard the arguments on that date. The suit was then fixed for judgment on 17-4-1957. On that date, the District Judge, on the applicants request, sent a telegram to the trial Court directing it to stay delivery of judgment. The telegram reached the trial Court on 18-4-1957. Judgment, however, was delivered on 17-4-1957 and a decree for Rs. 3,4007-was passed against the applicants. The revision is directed against this decree.

4. The learned single Judge, relying on the decision of late Rao J. in Jaisingh v. Jagatram, 1953 Nag. LJ 13: (AIR 1953 Nag 176) (A), is of the view that the stay order passed by the District Judge on 16-4-1957 became operative from the moment it was passed. He is also in agreement with the observations of Rao J. that any proceedings taken in the Lower Court after the stay are null and void, but as this was not the ratio decidendi of the case, he has referred the revision to a larger Bench because of its importance.

5. As a measure of caution, the applicants also filed an appeal from the decree in the Court of the District Judge on the day of the re-opening of the Courts on 17-6-1957 after the summer vacation. The appeal was, however, returned for presentation to the Court having jurisdiction according to the distribution memo. The appeal was accordingly presented to the Court of the Additional District Judge, Sagar, on 18-6-1957 but it was dismissed as barred by limitation. The applicants have preferred second appeal No. 38 of 1958 against that order. That appeal has not yet been admitted.

6. The learned counsel for both the parties did not contest the decision in Jaisiugh v. Jagatram (A)' (supra). Although there has been divergence of judicial opinion on the question as to whether a stay order passed by a higher Court with jurisdiction operates from the moment when it is passed or from the time when it is communicated to the Court concerned. The effect of a stay order, in our opinion, is to put a bar to the jurisdiction of the lower Court to proceed with the case. Accordingly no proceedings taken from the time the order is passed can have any effect The question of communication of the order may be relevant in proceedings for contempt of Court as was observed in Hukum Chand Boid v. Karnalanand, ILR 33 Gal 927 (B), but that is not a ground for holding, that the stay order is not operative until it is commuicated. As at present advised, we see no reason to depart from the view taken in Jaisingh v. Jagatram (A) (supra). The logical effect thereof is that the judgment and decree passed in civil suit No. 39-A of 1954 are null and void.

7. The learned counsel for the non-applicant, however, contended that even though the trial Court had no jurisdiction to deliver the judgment and pass the decree, the proper remedy is not by way of revision under Section 115 of the Code of Civil Procedure, as the applicants have a right of appeal. An appeal, however, can properly lie against a decree having legal existence. Where, therefore, a Court passes a decree after it ceases completely to exercise jurisdiction, the decree is a nullity and leaves no foundation for an appeal. On this point, their Lordships of the Supreme Court have, in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 (C), observed as below :

'It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.'

As the judgment and decree under consideration are null and void, the question of appeal is not relevant and accordingly this Court is competent to correct the record in revision under Section 115 of the Code of Civil Procedure, or under its supervisory jurisdiction under Article 227 of the Constitution.

8. The result is that the revision is allowed, the judgment and decree passed in civil suit No. 39-A of 1954 of the Court of Third Civil Judge, Sagar, aredeclared null and void and the suit is remitted to thatCourt for taking further proceedings in accordancewith law. Parties shall bear their own costs.


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