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Moolchand and ors. Vs. Maganlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Second Appeal No. 120 of 1962
Judge
Reported inAIR1965MP75; 1965MPLJ89
ActsCode of Civil Procedure (CPC) , 1908 - Sections 17, 37 and 48
AppellantMoolchand and ors.
RespondentMaganlal
Appellant AdvocateR.K. Vijayavargiya and ;S.D. Sanghi, Advs.
Respondent AdvocateG.M. Chapherkar, Adv.
Cases ReferredHarkishandas v. Gulabdas Kalyandas
Excerpt:
- - now, the well settled rule is that an executing court must take and execute the decree, as it stands except where it is shown that the court passing the decree had no jurisdiction to pass it. the equally well-settled rule with regard to the power of the executing court to question the legality or correctness or validity of a decree is that a decree may not be according to law, yet it is binding and conclusive between the parties until it is set aside either in appeal or in revision, and the executing court has no jurisdiction to refuse to execute the decree on the ground that it is not according to law. if such a decree is not a nullity, then clearly an executing court cannot refuse to execute the decree on the ground that the court passing it ignored certain provisions of law......whereas in the case of air 1943 nag 165 : ilr (1943) nag 293 (supra) it has been held that a decree passed on the basis of an unregistered award embodying a charge is not nullity, in the case of air 1946 nag 311 : ilr (1946) nag 583 (supra) it has been ruled that such a decree is a nullity. now, the well settled rule is that an executing court must take and execute the decree, as it stands except where it is shown that the court passing the decree had no jurisdiction to pass it. if a decree is passed by a court without jurisdiction, then its validity can be questioned whenever the decree is sought to be enforced or relied upon. this is clear from the decision of the supreme court in kiran singh v. chaman paswan, air, 1954 sc 340. 7. a distinction must, however, be drawn between a.....
Judgment:

1. This reference has been made by one of us (Newaskar J.) for resolving the conflict between the decisions in Lakhmichand v. Biharial, AIR, 1943 Nag 165 : ILR (1943) Nag 293 and Uttamchand Motilalji v. Wasudeo Deorao, AIR 1946 Nag 311 : ILR (1946) Nag 583.

2. The material facts are that on the basis of an unregistered award a money decree for Rs. 900/- creating a charge on a house belonging to the respondent was passed in favour of the appellants. In execution proceedings of that decree, the house was sold and purchased by the decree-holders themselves. Thereupon, the respondent objected, to the sale on the ground that the decree itself was a nullity inasmush as the award had not been registered as required by Section 17(1)(b) of the Indian Registration Act, 1908. This objection was) overruled by the executing Court. It, however, prevailed in appeal which the judgment-debtor) filed in the Court of the Additional District Judge, Dhar. The learned Additional District Judge, following the decision in AIR 1946 Nag 311 : ILR (1946) Nag 583 (supra) held that the decree was a nullity and consequently the sale was also nullity.

3. The decree-holders then filed a second appeal in this Court. During the course of the) hearing of the second appeal, the question arose as to which of the two decisions of the Nagpur High, Court the learned Single Judge had to follow in deciding the question whether the decree was or was not a nullity as the award had not been registered. The learned Single Judge, therefore, following the observations of the Supreme Court in Jaisri v. Rajdawan, AIR 1962 SC 83, adopted the course, of referring the matter to a Full Bench without taking upon himself the responsibility of deciding whether he should follow one Division Bench decision or the other.

4. There is no dispute that the award, which embodied a charge on the property of the respondent required registration under Section 17(1)(b) of the Registration Act and was not registered;, and that the award not having been registered could not under Section 49 of the Act be received as evidence in the proceedings for the filing of the award which led to the decree in favour of the appellants. The decree that was passed in the appellant's favour was thus in contravention of the provisions of the Registration Act. The short question, therefore, that arises for determination is whether the decree is a nullity because the Court passing it ignored the provisions of the Registration Act and an objection that the decree being a nullity is not executable could be taken in execution proceedings of that decree. On this point, in AIR 1943 Nag 165 : ILR 1943 Nag 293 (supra) a Division Bench consisting of Grille C. J. and Vivian Bose J., expressed the following view: --

'In our opinion, the same principle applies in respect of decrees consequent on an award as, does in the case of all other decrees. The executing Court cannot go behind it. It is true there are cases which hold that when the jurisdiction of the Court passing the decree is questioned the executing Court can consider the matter; also when it is contended that the decree is a complete nullity--and as a matter of fact that was the contention here. But in our opinion a decree given on the basis of an unregistered award is no more a nullity. than a decree obtained in an ordinary suit on art unregistered mortgage or sale deed which requires registration.'

5. When a similar question arose in AIR 1946 Nag 311 : ILR (1946) Nag 583 (supra) another Division Bench consisting of Grille C. J. and Puranik J. expressed itself thus: --

'It is, however, strongly contended, on behalf of the appellant that, as the award has been superseded by a decree and the decree itself does not require registration, the execution of the decree cannot be refused, as an executing court is not entitled to question the validity of the decree. We agree that such is the general rule, but where it is patent that the decree is in fact passed without jurisdiction or is a nullity the executing Court is entitled to question the validity of the decree. It is said that the executing Court is not entitled to go into the necessarily complicated question whether an award in which a charge is created is registrable or not when a Court in which the award was filed has passed a decree in terms of it. When, however, there is a definite decision of a Full Bench of this Court, vide (Mohd. Azizullah Khan v. Mohd. Noorullah Khan, ILR 1939 Nag 607 : (AIR 1939 Nag 233) (FB) that no decree can be passed on the basis of an award which requires registration it must follow that such a decree in respect of the charge is a nullity in that it was one which the Court was incompetent to pass; and in, these circumstances it is immaterial whether the fact is deducible from the actual wording of the decree or not, since the absence of jurisdiction can be ascertained without an enquiry into facts, vide (Laxman Madhoji v. Dhamori Co-operative Credit Society) AIR 1933 Nag 211.'

6. It is plain that the two decisions are conflicting. Whereas in the case of AIR 1943 Nag 165 : ILR (1943) Nag 293 (supra) it has been held that a decree passed on the basis of an unregistered award embodying a charge is not nullity, in the case of AIR 1946 Nag 311 : ILR (1946) Nag 583 (supra) it has been ruled that such a decree is a nullity. Now, the well settled rule is that an executing Court must take and execute the decree, as it stands except where it is shown that the Court passing the decree had no jurisdiction to pass it. If a decree is passed by a Court without jurisdiction, then its validity can be questioned whenever the decree is sought to be enforced or relied upon. This is clear from the decision of the Supreme Court in Kiran Singh v. Chaman Paswan, AIR, 1954 SC 340.

7. A distinction must, however, be drawn between a decree which is a nullity and decree which is not according to law in that the Court passing the decree ignored certain provisions of the law. The equally well-settled rule with regard to the power of the executing Court to question the legality or correctness or validity of a decree is that a decree may not be according to law, yet it is binding and conclusive between the parties until it is set aside either in appeal or in revision, and the executing Court has no jurisdiction to refuse to execute the decree on the ground that it is not according to law. (See V. Ramaswami v. Kailasa Thevar, AIR 1951 SC 189; Jnanendramohan v. Rabindranath, AIR 1933 PC 61 and Bhagsingh v. Govindram, AIR 1943 Nag 325 : ILR (1943) Nag 757. If a Court passing the decree had jurisdiction to pass it, then even if the decree is contrary, to certain provisions of law, it would not be a nullity and a plea about the illegality of the decree cannot be entertained in execution proceedings, This matter has been put by Gajendragadkar J. (as he then was) in Harkishandas v. Gulabdas Kalyandas, (S) AIR 1956 Bom 513 thus-

'In determining the jurisdiction of the executing Court to entertain pleas under Section 38, Civil, P. C., it is always necessary to make a distinction between pleas that tend to show that the decree in question is a nullity and pleas that merely challenge the validity or the propriety of the decree on the ground that it is contrary to the provisions of law. If the plea is that the decree is a nullity and so cannot be executed, it would be open to the executing Court to entertain the plea.

On the other hand, if the plea is that the decree is contrary to law in the sense that in passing the said decree certain provisions of the law have been ignored or contravened that would not necessarily make the decree a nullity and allegations about the impropriety or the illegality of the decree cannot be entertained in execution proceedings.'

8. Now, when proceedings in a Court are initiated for the filing of an award after it is rendered, the jurisdiction of the Court to investigate and determine matters relating to the award before filing the award and passing a decree on it or refusing to file it does not depend in any way on the fact whether the award is one which does or does not require registration under the Registration Act, 1908.

In other words, where an award requires registration under Section 17(1)(b) of the Act, the fact of its registration is not a 'jurisdictional fact' which must be first established for giving to the Court jurisdiction to proceed further in the matter of the filing of the award. If the Court is one competent and having jurisdiction to deal with the matter of the filing of the award intended to be filed, then no matter whether the award is registered or unregistered, the Court gets jurisdiction to proceed with the matter of the filing of the award when an application for that purpose is made.

It is thus plain that if an award requires registration under Section 17(1)(b) of the Act and has not been registered and the Court still files it and passes a decree on its basis, then the decree cannot be said to be one passed by a Court having no jurisdiction. The decree may be invalid, it may not be according to law; but once it is passed, it is binding and conclusive between the parties until it is set aside either in appeal or in revision. If such a decree is not a nullity, then clearly an executing Court cannot refuse to execute the decree on the ground that the Court passing it ignored certain provisions of law.

9. The view, therefore, taken in AIR 1943, Nag 165 : ILR (1943) Nag 293 (supra) is in entire accord with the two settled principles, namely, first, where there is a lack of inherent jurisdiction in the Court passing a decree, the decree is null and void and the executing Court can refuse to execute the decree; and, secondly, if the Court had inherent jurisdiction to pass a decree, then even if the decree is not according to law or is one passed in contravention of some provision of law, yet it would not be a nullity but would be binding and conclusive between the parties and the executing Court has no jurisdiction to refuse to execute the decree on the ground that it was not according to law. If we may say so with respect the matter was succinctly put by the learned Judges deciding, Lakhimichand's Case, AIR 1943 Nag 165 : ILR (1943) Nag 293 (supra) when they said:

'. . . . a decree given on the basis of an unregistered award is no more a nullity than at decree obtained in an ordinary suit on an unregistered mortgage or sale deed which requires registration.'

10. With great respect for the opinion of the learned Judges deciding the case of AIR 1946 Nag 311 : ILR (1946) Nag 583 (supra) the view taken by them that a decree passed on the basis of an award which requires registration is a nullity if the award is not registered is not correct. The Full Bench decision in ILR (1939) Nag 607 : (AIR 1939 Nag 233) (FB) relied on by them only holds that no decree can be passed on the basis of an award which requires registration. It does not lay down the proposition that a decree passed on the footing of an unregistered award which required registration is a nullity.

The observation in Uttamchand Motilalji's Case, AIR 1946 Nag 311 : ILR (1946) Nag 583 (supra) that as no decree can be passed on the basis of an award which requires registration, the decree is a nullity in that it is passed by the Court incompetent to pass it overlooks the great difference) between want of jurisdiction and erroneous exercise of it. No doubt, if an award requires registration, a Court cannot and should sot pass a decree on its basis. But if the Court passes a decree, then there is an erroneous exercise of jurisdictional power on the part of the Court and not any lack of jurisdiction in the Court in passing the) decree. It may be noted that the decision in Uttamchand Motilalji's Case, AIR 1946 Nag 311 : ILR (1946) Nag 583 (supra) was given without reference to the earlier decision.

11. For the foregoing reasons, our opinion is that the view expressed in AIR 1943 Nag 165 : ILR (1943) Nag 293, (supra) that a decree given on the basis of an unregistered award is not a nullity and cannot be questioned in execution is correct; and the later decision, namely, AIR 1946 Nag 311 : ILR (1946) Nag 583 (supra) does not contain a correct enunciation of the law on the point.


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