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NaraIn Kumar Vs. Neki Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 641 of 1977
Judge
Reported inAIR1984P& H361
ActsPunjab Courts Act - Sections 39; Court-fees Act - Sections 7; Suits Valuation Act - Sections 8 and 11; Code of Civil Procedure (CPC), 1908 - Sections 21, 47 and 99
AppellantNaraIn Kumar
RespondentNeki Ram and ors.
Cases ReferredKalu Ram v. Hanwant Ram
Excerpt:
.....to the decree-holder on dec. the learned judge observed that it is well established that the 'value of a suit' for purposes of jurisdiction is to be determined by the valuation in the plaint. moreover, in the present case, the defendant completely identified himself with the plaintiff and not only failed to raise any objection regarding jurisdiction but positively agreed to all the assertions made by the plaintiff in the plaint, and, therefore, it did not lie in the defendant's mouth to raise any such objection regarding jurisdiction, unless he was able to show that it was a case of total lack of jurisdiction. it was further held that the utmost that can be said is that there was under-valuation of the subject-matter of the suit but the decree of the trial court on that account is..........in the plaint in accordance with the provisions of s. 7(iv)(f), court-fees act, read with s. 8, suits valuation act, or the amount found due and decreed by the trial court, has been recently considered at great length by a full bench of five judges of this court in kalu ram v. hanwant ram, (air 1934 lah 488). in that case it was held by the majority, that in suits for money due on unsettled accounts, the value fixed in the plaint is 'the value of the original suit', except where the trial court finds that a higher amount is due, in which case it is the latter amount which automatically becomes 'the value of the original suit' and as such determines the course of appeal. the full bench also reaffirmed the rule, which had been laid down repeatedly and consistently by the chief court and.....
Judgment:
ORDER

1. On Jan. 25, 1973, Neki Ram, respondent filed a suit against Narain Kumar petitioner and his father Lachhman Dass for rendition of accounts, possession of stall No. B-8/118 situate at Main Road, Samana, District Patiala, as also for the recovery of Rupees 200/- as damages for breaking the lock and two glass panes of the almirahs and Rs. 800/- as mesne profits from Oct. 2, 1970 to June 1,1971, at the rate of Rs. 100/- per month. The suit was valued for purposes of Court-fee and jurisdiction at Rs. 200/- for rendition of accounts, Rs. 1500/- for possession, Rs. 200/. for damages and at Rs. 800/- for mesne profits. The suit was pending in the Court of Shri P. S. Bajaj, Additional Sub Judge IIIrd Class, Patiala, on Dec. 7, 1973, on which date the parties compromised. The trial Court granted a decree for Rs. 5,100/- and for possession of the stall (shop) in favour of Neki Ram, respondent and against Narain Kumar petitioner and his father Lachhman Dass. The decretal amount could be paid in two equal instalments of Rs. 2550/- each on April 15, 1974 and Dec. 15. 1974. In case of payment of both the instalments on the due dates the entire decree, including the one for possession of stall was to stand fully satisfied and in the event of default of payment of any instalment in time the decree-holder could recover the decretal amount due as also the possession of the stall in dispute. The judgment-debtors paid the first instalment of Rs. 2550/- in time. The amount of second instalment was remitted to the decree-holder by money order on Dec. 23, 1974. The amount of second instalment having not been paid by the due date, that is Dec. 15, 1974, the decree-holder sought the execution of the decree. The petitioner filed an objection petition under S. 47 of the Civil P. C. which was resisted by Neki Ram decree-holder.

2. The executing Court framed the following issues:

1. Whether the decree in question is a nullity and without jurisdiction? If so, to what effect?

2. Whether the execution petition is not maintainable?

3. Whether the validity of decree in question cannot be challenged by the Objector?

3. The executing Court vide order dt. Sept. 6, 1976, found all the issues in favour of the decree-holder and against the petitioner-judgment-debtor and held that the former was entitled to the recovery of the decretal amount due as also the possession of the stall. The petitioner filed an appeal against the order of the executing Court dt. Sept. 6, 1976, which was dismissed by District Judge, Patiala, vide order dt. April 23, 1977. It is against this order that the present revision is directed.

4. The learned counsel for the petitioner has argued that the amount of second instalment was tendered to the decree-holder some days before Dec. 15, 1974, but he did not accept it. The decree-holder did not approach the petitioner or his father to receive the amount of second instalment on Dec. 15, 1974. It was under these circumstances that the amount of the second instalment was remitted to him by money order on Dec. 23, 1974. The judgment-debtor did not commit any default in payment of the second instalment. The executing Court as also the appellate Court have wrongly recorded a contrary finding. The contention is without merit. The Courts below have rightly held that the petitioner and his father had failed to pay the amount of the second instalment to the decree-holder on Dec. 15, 1974.

5. The other point argued by the learned counsel for the petitioner is that the decree dt. Dec. 7, 1973, was passed by Shri P. S. Bajaj, who exercised the powers of a Third Class Subordinate Judge. His pecuniary jurisdiction was Rs. 2,000/-. He had no jurisdiction to pass the decree for Rs. 5100/- against the petitioner and his father. The decree dt. Dec. 7, 1973, is a nullify and cannot be executed. Reliance has been placed on Kalu Ram v. Hanwant Ram, AIR 1934 Lah 488 (FB): Ganga Ram v. Hakim Rai, AIR 1934 Lah 545 (2) (FB) and Basant Singh v. Tirloki Nath Lachhman Dass, AIR 1960 Punj 610.

6. The learned counsel for the decree-holder has contended that the decree passed by Mr. P. S. Bajaj, Subordinate Judge III Class in favour of Neki Ram is not a nullity inasmuch as the suit for rendition of accounts etc. filed by the latter was admittedly within the jurisdiction of the leamed Subordinate Judge. Reliance has been placed on Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; Inder Singh v. Suba Singh, (1956) 58 Pun LR 195: (AIR 1956 Punj 242) and Mahadeo v. Hanumanmal, AIR 1969 Raj 304.

7. In Kalu Ram's case (AIR 1934 Lah 488) (FB) (supra) it was held:

'For the foregoing reasons, I respectfully decline to accept the view that in suits of this description the value approximately and tentatively fixed in the plaint remains inflexibly and irrevocably the 'value of the subject-matter of the suit', and that it is this valuation which regulates the course of appeal in all cases. I also hold that equally untenable is the position of the respondent that the amount found due is the real value of the subject-matter of the suit, regardless of the fact whether it is in excess of or less than the amount stated in the plaint. It is conceded that this proposition cannot be pushed to its logical consequences, for it would lead to the absurd result that if the Court finds that nothing is due by the defendant to the plaintiff the 'value of the original suit' would be reduced to zero. Mr. Kishan Dayal frankly conceded that in that event the rule enunciated by him would not apply and that the initial value as given in the plaint would regulate the course of appeal. Obviously this position is highly anomalous and I can find no legal basis for it. If for instance, in the present case, which, as stated already, had been valued in the plaint for Rupees 8,000/- the Subordinate Judge had dismissed the suit holding that nothing was due by the defendant to the plaintiff, the plaintiff's appeal challenging that finding would, according to Mr. Kishan Dayal, lie to the High Court as the amount or value of the subject-matter of the original suit shall be taken to be Rs. 8,000/-. But if the trial Judge had passed a decree for Rs. 1 the appeal would be cognizable by the District Judge. Mr. Kishan Dayal was not able to put forward any valid reason in support of this contention and I have no hesitation in rejecting it.

In my opinion, neither of these two extreme views is correct, and the true rule is that in suits for money due on unsettled accounts the value fixed in the plaint is the value of the subject-matter of the original suit, except where the trial Court finds that a higher, amount is due, in which case it is the latter amount which automatically becomes the 'value of the subject-matter of the original suit' and as such determines the course of appeal.'

8. In Ganga Ram's case (AIR 1934 Lah 545 (2)) (FB) (supra), the following point was referred to the Full Bench:--

'Whether in the circumstances of the case the District Judge was competent to entertain the appeals and pass a decree for Rs. 32,933-2-3 in the exercise of his appellate jurisdiction.'

9. The Court held:

'The statutory provision dealing with the matter is to be found in Section 39, Punjab Courts Act, which reads as follows:

'Save as aforesaid, the appeal from a decree of a Subordinate Judge shall lie. (a) to the District Judge where the value of the original suit in which the decree was made did not exceed Rs. 5,000/-, and (b) to the High Court in any other case'.

The question, whether for the purposes of this section 'the value of the original suit' in a case for dissolution of partnership and rendition of accounts is the tentative value fixed by the plaintiff in the plaint in accordance with the provisions of S. 7(iv)(f), Court-fees Act, read with S. 8, Suits Valuation Act, or the amount found due and decreed by the trial Court, has been recently considered at great length by a Full Bench of five Judges of this Court in Kalu Ram v. Hanwant Ram, (AIR 1934 Lah 488). In that case it was held by the majority, that in suits for money due on unsettled accounts, the value fixed in the plaint is 'the value of the original suit', except where the trial Court finds that a higher amount is due, in which case it is the latter amount which automatically becomes 'the value of the original suit' and as such determines the course of appeal. The Full Bench also reaffirmed the rule, which had been laid down repeatedly and consistently by the Chief Court and this Court, that a Subordinate Judge, in whose Court a suit for accounts had been properly instituted accordingly to the tentative value given in the plaint, is not competent to pass a decree in excess of the limit of his pecuniary jurisdiction and that the proper course to be followed is that as soon as he discovers that the amount due is likely to exceed his pecuniary jurisdiction, he should return the plaint for presentation in the proper Court. Following the rule laid down by the Ful1 Bench in the case cited, it must be held that the appeals were properly presented in the District Court. As already stated, the plaintiff had valued his suit at Rs. 2,000/- and the Senior Subordinate Judge had passed a decree for Rs. 3,286/-. Accordingly, for the purposes of determining the forum of appeal, the 'value of the original suit' was Rs. 3,286/- and the appeals lay to the District Court.

The question, however, arises whether the District Judge, though seized of the appeals, had jurisdiction to pass a decree for more than Rs. 5,000/-.

For the foregoing reasons, my answer to the question referred to the Full Bench is that the District Judge had no jurisdiction to pass a decree for more than Rs. 5,000/-, and that the proper course for him was to return the memorandum of appeal for presentation in this Court.'

10. In Basant Singh's case (AIR 1960 Punj 610) (supra) it was held that an executing Court cannot go behind the decree. The executing Court is bound to execute the decree in spite of the fact that the decree is contrary to law or is erroneous on facts. If, however, what purports to be a decree has been passed by a Court not duly constituted in accordance with law, such an adjudication is not a decree at all in the eye of law. Such a decree in the strict sense of the terms is a nullity, a mere nothing that need not be set aside and may be disregarded by any Court to which it is presented. The executing Court cannot refuse to execute the decree on the basis that the suit in which the decree was passed had been overvalued or undervalued, but it must refuse to execute the decree when the question of valuation of the suit need not be investigated and it is found that on the valuation as given in the plaint the Court passing the decree had no pecuniary jurisdiction to pass it. It was further held that a Court must have jurisdiction to entertain a suit at all its stages and not merely at the initial stage where the Court in which a suit was filed had jurisdiction to entertain the suit but on abolition of the said Court the suit went over to the Court of a Sub-Judge who was exercising only second class powers and on the valuation given in the plaint the Sub-Judge could not have tried the suit and the decree passed was a nullity and inexecutable.

11. In Mahadeo's case (AIR 1969 Raj 304) (supra) it was held that the valuation which the plaintiff had given in the plaint in a suit for partition filed in the Court of the Civil Judge, Ratangarh, was Rs. 2500/- i.e. within the jurisdiction of the Court. The defendant pleaded that the valuation of the plaintiff's share would be more than Rs. 10,000/-, if all the partible property was taken into consideration. However, before the parties could start their evidence, the matter was referred to arbitrators and according to the award given by the arbitrators the valuation of the plaintiff's share came to be more than Rs. 10,000/-. On the question whether the Civil Judge could pass a decree on the basis of the award, it was held that the Civil Judge could pass a decree. The learned Judge observed that it is well established that the 'value of a suit' for purposes of jurisdiction is to be determined by the valuation in the plaint. In every case when the Court is seized of jurisdiction it cannot and does not lose it by the precise ascertainment of its value in cases which do not admit of such ascertainment at the time of its institution. Moreover, in the present case, the defendant completely identified himself with the plaintiff and not only failed to raise any objection regarding jurisdiction but positively agreed to all the assertions made by the plaintiff in the plaint, and, therefore, it did not lie in the defendant's mouth to raise any such objection regarding jurisdiction, unless he was able to show that it was a case of total lack of jurisdiction. It was further held that the utmost that can be said is that there was under-valuation of the subject-matter of the suit but the decree of the trial Court on that account is not 1iable to be set aside unless the appellate Court was satisfied that the under-valuation of the suit had prejudicially affected the disposal of the suit on merits.

12. In Kiran Singh's case (AIR 1954 SC 340) (supra) their Lordships observed:

'With reference to objections relating to territorial jurisdiction, S. 21 of the Civil P. C. enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the. same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, Civil P. C., and S. 11 of the Suits Valuation Act is the same. namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds unless it had resulted in failure of justice, and the policy of the legislature, has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.'

13. In Inder Singh's case (AIR 1956 Punj 242) (supra) the Sub Judge having pecuniary jurisdiction up to Rs. 1,000/- only passed a decree for possession by pre-emption on payment of Rs. 3,150/. In execution proceedings an objection was raised that the decree being in excess of his pecuniary jurisdiction is a nullity. It was held that the decree was not a nullity and objection could not be raised in execution proceedings. Reliance was placed on Kiran Singh's case (AIR 1954 SC 340) (supra).

14. In Kalu Ram's case (AIR 1934 Lah 488) (FB) (supra) and Ganga Ram's case (AIR 1934 Lah 545 (2) (FB) (supra) the point for consideration was about the value of the subject-matter of the suit which will regulate the course of appeal. The scope and extent of application of S. 11 of the Suits Valuation Act vis-a-vis a decree passed by a Subordinate Judge exceeding his pecuniary jurisdiction was not considered. This point was again not considered in Basant Singh's case (AIR 1960 Punj 610) (supra).

15. Shri P. S. Bajaj, Subordinate Judge III Class passed the decree on Dec. 7, 1973, in favour of Neki Ram and against the petitioner and his father on the basis of a compromise. No objection was raised by the petitioner regarding the pecuniary jurisdiction of the learned Subordinate Judge before filing the objection petition under S. 47 of the Civil P. C. in the execution proceedings initiated by the decree-holder to execute the decree. The observations made by the Supreme Court in Kiran Singh's case (AIR 1954 SC 340) (supra) are squarely applicable to the facts of the instant case. No foundation has been laid by the petitioner to warrant a finding that the lack of pecuniary jurisdiction on the part of the learned Subordinate Judge prejudiced the case of the petitioner on merits. The ratio of the decisions in Kiran Singh's case (supra) and Mahadeo's case (AIR 1969 Raj 304) (supra) support the case of Neki Ram decree-holder that the objection regarding the lack of pecuniary jurisdiction of learned Subordinate Judge cannot be raised in execution proceedings by the petitioner in the absence of any prejudice on merits.

16. In the result, the revision fails and is dismissed with no order as to costs.

17. Revision dismissed.


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