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Janata Cinema and anr. Vs. Cineram Private Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 104 of 1972
Judge
Reported inAIR1974Ori101; 39(1973)CLT961
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantJanata Cinema and anr.
RespondentCineram Private Ltd.
Appellant AdvocateM. Mohanty, Adv.
Respondent AdvocateS.C. Mohapatra, Adv.
DispositionAppeal dismissed
Cases ReferredHira Lal Patni v. Sri Kali Nath
Excerpt:
.....court clearly indicates that they had taken several adjournments from time to time for the purpose of adducing evidence in support of their objections. their conduct on the other hand, strongly indicates that they raised various objections without being satisfied as to the existence of their factual basis apparently to delay realisation of the decretal dues......v. sri kali nath, 1961 scr 951 = (air 1962 sc 199). thus, the objections to the validity of the decree raised do not go to the root of the jurisdiction of the trial court and cannot be entertained by the executing court. the executing and lower appellate courts were in my opinion right in rejecting the same.4. if the judgment debtors were so sanguine that the records of the case would show, on their face that no notice of suit had been taken out at all against the defendant or that the plaint did not disclose that any cause of action arose within the jurisdiction of bombay court, they could have taken steps to call for the records. the order sheet of the executing court clearly indicates that they had taken several adjournments from time to time for the purpose of adducing evidence in.....
Judgment:

S.K. Ray, J.

1. The appellants are the Judgment Debtors in Ex. Case No. 216/70 in the Court of Subordinate Judge, Puri. Respondent obtained an ex parte decree in the Court of Small Causes in Bombay for recovery of a sum of Rupees 2,553.60 p. His claim was based upon a contract entered into between him and the appellants under which the Decree Holder rendered some services to the Judgment Debtors by way of carrying on maintenance work of Janata Cinema Machinery at Puri belonging to the former. The Decree was transferred to the Court of Subordinate Judge, Puri for execution, upon which the aforesaid execution case was instituted. After receiving notice of this execution, the appellants filed an objection petition under Section 47, Civil P.C. objecting to the executability of the decree on some grounds. Thereupon, Misc. Case No. 131 of 1971 was registered. This petition of objection was dismissed by the Subordinate Judge, Puri by his order dated 25-1-1972. Appellants carried an appeal to the Court of District Judge, Puri in M.A. No. 17 of 1972. This appeal was also dismissed by the District Judge on 18-8-1972. The present appeal is from the aforesaid appellate decision.

2. The grounds of objection to the executability of the decree taken by the judgment debtors are:--

(i) The Bombay Court which passed the decree lacked inherent jurisdiction to entertain and try the suit inasmuch as no part of the cause of action arose within its territorial jurisdiction and as such the decree is a nullity, and

(ii) The decree was obtained by fraud inasmuch as there was fraudulent suppression of summons, and the Court was misled by false assertions and perjured evidence. Both these grounds of objection have been negatived by the Courts below who reasoned that the executing Court cannot go behind the decree and determine these questions.

3. It is contended relying upon a decision of the Supreme Court in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, AIR 1970 SC 1475 that where, as in this case, the decree passed by the Bombay Court which lacked inherent jurisdiction to make it, objections as to its validity may be made in the execution proceeding. If objections appear on the face of the record, and it is the incumbent duty of the executing Court suo motu to call for the records to check and verify if the objections are borne out on the face of the record. I think this argument is misconceived. Their Lordships of the Supreme Court have said in the aforesaid case that:--

'A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.'

They have, however, added a rider to the principles in the following words:--

'When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate is sought to be executed an objection in that behalf may be raised in a proceedings for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record; where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.'

In the instant case the objections are of such a nature that in order to uphold them it would require examination of questions of fact as to whether there has been suppression of summons and as to whether any part of the cause of action aroes within the jurisdiction of Bombay Court, which would involve consideration of the various ancillary matters raised and decided by that Court Even assuming that there was lack of territorial jurisdiction of the Bombay Court in entertaining the suit, it does not affect its competence, so as to render the decree passed by it a nullity. It is well settled that objection to territorial jurisdiction of a Court does not stand on the same footing as an objection to the competence of the Court to try the case -- vide the case of Hira Lal Patni v. Sri Kali Nath, 1961 SCR 951 = (AIR 1962 SC 199). Thus, the objections to the validity of the decree raised do not go to the root of the jurisdiction of the trial Court and cannot be entertained by the executing Court. The executing and lower appellate Courts were in my opinion right in rejecting the same.

4. If the Judgment Debtors were so sanguine that the records of the case would show, on their face that no notice of suit had been taken out at all against the defendant or that the plaint did not disclose that any cause of action arose within the jurisdiction of Bombay Court, they could have taken steps to call for the records. The order sheet of the executing Court clearly indicates that they had taken several adjournments from time to time for the purpose of adducing evidence in support of their objections. The petitions dated 10-12-1971, 18-12-1971, 10-1-1972 and 12-1-1972 filed by the Judgment Debtors amply corroborate this. Despite ample opportunities having been afforded to them, they took no steps to call for the suit records. They have not moved their little finger in that regard and at the long last, have taken stand that the records should have been called for suo motu, by the executing Court. This stand is entirely wrong. Their conduct on the other hand, strongly indicates that they raised various objections without being satisfied as to the existence of their factual basis apparently to delay realisation of the decretal dues. However, since the Judgment Debtors pray for a last opportunity to produce necessary evidence. I would grant them such an opportunity only to show from the suit records that no notice of suit had been issued to the defendants at all and that the plaint does not indicate any part of the cause of action arose within the jurisdiction of Bombay Court, provided they furnish proper security to the satisfaction of the executing Court for the entire decretal amount upto date together with the interest accrued thereon upto date within six weeks from today i.e. the date of this order. In case such security is furnished and steps are taken to call for the necessary records of the trial Court within the same time, the executing Court shall call for the records. The Judgment. Debtors will not however, be allowed to adduce any oral evidence in the case except being permitted to rely upon the records of the case. If no security is furnished the executing Court shall proceed to execute the decree.

5. In the result, therefore, the appeal is dismissed with the direction as given above that the Judgment Debtors shall be given an opportunity to call for the records of the case only to show whatever they desire to show from those records as to avoid character of the decree.

6. The appeal is dismissed but in the circumstances, there would be no order for costs of this Court.


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