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Panthalakunnummal Pokkutty's daughter Kunheema Umma and Ors. Vs. Puthalath Balakrishnan Nair (21.06.1966 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 864 of 1962
Judge
Reported inAIR1967Ker97
ActsKerala Stay of Eviction Proceedings Act, 1957 - Sections 4; Code of Civil Procedure (CPC) , 1908 - Sections 9, 11, 21 and 47; Evidence Act, 1872; Suits Valuation Act, 1887 - Sections 11
AppellantPanthalakunnummal Pokkutty's daughter Kunheema Umma and Ors.
RespondentPuthalath Balakrishnan Nair
Appellant Advocate T.S. Venkiteswara Iyer, Adv.
Respondent Advocate V. Balakrishna Eradi and; T.C. Mohandas, Advs.
DispositionAppeal dismissed
Cases ReferredIn Raghunandjm v. Commissioner
Excerpt:
.....for redelivery of properties delivered to decree-holder-auction purchaser in execution of decree - jurisdiction of munsiff disputed - when a court in exercise of jurisdiction possesses by it failed to act according to mode prescribed by statute it is case of exercise of jurisdiction in irregular or illegal manner - non-compliance with every rule of procedure cannot destroy jurisdiction of court - such non-compliance may in some cases amount to mere irregularity and consequently insufficient to invalidate proceeding until it is shown that any party has been prejudiced by reason thereof - in other cases it may amount to an illegality and affect validity of whole proceeding - appeal dismissed. - - chaman paswan, air 1954 sc 340 at p 342: it is a fundamental principle well..........on the grounds ibal section 4 of act 1 of 1957 was not a bar to the confirmation of a court sale in execution of a decree for arrears of rent which took place prior to the date of the ordinance and the act and the order passed on f a. 769 of 1957 operated as a bar to the petition for redeliverv filed by defendants 1 to 1 4. 4. the correctness of both these grounds was challenged before us by the learned advocate appearing for defendants 1 to 4. since we are of the view ibal the order dated 22-7-1957 of the execution court dismissing e. a 769 of 1957 is a bar to the application for redelivery filed by the defendants, we do not think it necessary to consider the question whether confirmation of a court sale which took place in execution of a decree for arrears of rent prior to act 1.....
Judgment:

Krishnamoorthy Iyer, J.

1. Defendants 1 to 4 are the appellants and the appeal arises 0111 of an application filed by them for redelivery of the properties delivered to the decree-holder-auction purchaser in execution of the decree

2. The decree was for arrears of rent. In execution of the decree, the decree-holder purchased in court auction the leasehold interest of defendants 1 to 4 in the plaint items. The Court sale was on 25-3-1957. The Kerala Stay of Eviction Proceedings Ordinance. 1957 (Ordinance I of 1957) came into force on 11-4-1957. Ordinance 1 of 1957 was replaced by the Kerala Stay of Eviction Proceedings Act, 1957 (Acl I of 1957) which came into force on 31-5-1957. Section 4 of the Act was to the following effect:

'Notwithstanding anything to the contrary contained in any other law for the lime being in force or in any contract, with effect on and from the commencement of this Act, no suit or other proceedings for eviction of a person from his holding or for the recovery of arrears of rent in respect of, or for damages for use and occupation of the holding accrued due before the commencement of the Kerala Stay of Eviction Proceedings Ordinance. 1957 shall lie in any Court and all suits, proceedings in execution of decrees or orders and other proceedings pending in the Courts at such commencement for such eviction or recovery of arrears of such rent or damages shall be stayed:

Provided that nothing in this section shall preclude the Court from granting any relief to which the lessor to entitled other than eviction from the holding.

3. The defendants filed E. A 769 of 1967 praying that in view of Section 4 of Act 1 of 1957, the confirmation of the court sale should be stayed. E. A. 769 of 1957 was dismissed by the execution court by the order dated 22-7-1957, as it was of the view that the court sale having taken place, there was no proceeding for recovery of arrears of rent pending execution and Section 4 of Act 1 of 1957 was no bar to the confirmation of the court sale. The court sale was therefore confirmed on 23-7-1957 and the properties purchased in auction were delivered to the auction purchaser on 29-9-1957. Defendants 1 to 4 filed an application for redelivery of the properties delivered to the auction purchaser on the ground that the confirmation of court sale and the subsequent delivery proceedings being in violation of Section 4 of Act 1 of 1957 are without jurisdiction and defendants 1 to 4 are entitled to have their possession restored. Both the Courts below rejected the petition for redelivery on the grounds Ibal Section 4 of Act 1 of 1957 was not a bar to the confirmation of a court sale in execution of a decree for arrears of rent which took place prior to the date of the Ordinance and the Act and the order passed on F A. 769 of 1957 operated as a bar to the petition for redeliverv filed by defendants 1 to 1 4.

4. The correctness of both these grounds was challenged before us by the learned advocate appearing for defendants 1 to 4. Since we are of the view Ibal the order dated 22-7-1957 of the execution court dismissing E. A 769 of 1957 is a bar to the application for redelivery filed by the defendants, we do not think it necessary to consider the question whether confirmation of a court sale which took place in execution of a decree for arrears of rent prior to Act 1 of 1957 is a proceeding for recovery of arrears of rent in execution contemplated by Section 4 of Act 1 of 1957

5. It was contended by the learned counsel for the appellants that the order dismission E. A. 769 of 1957 could not operate as a bar to the petition for redelivery of the properties because the confirmation of the court sale in utter disregard of the statutory prohibition under Section 4 of Act I of 1957 is void as the Court was deprived of its jurisdiction to pass the order of confirmation and therefore It a nullity. In support of his contention the learned advocate relied on Section 44 of the Evidence Act which reads:

'Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 or 42, and which has been proved by the adverse party, was delivered by Court not competent to deliver it or was obtained by fraud or collusion.'

6. The principle laid down in Section 11 of the C. P. C. is modified by Section 44 of the Evi-dence Act and the 'principle of Judicatawill not apply If any of the three grounds mentioned in Section 44 of the Evidence Act exists, namely, (1) the incompetency or want of jurisdiction of the Court by which the judgment or decree or order was passed, (2) that the judgment or decree or order was obtained by fraud and (3) through collusion. It was not contended by the learned counsel that the order on E. A. 769 of 1957 was obtained by fraud or collusion. Therefore the only question to be decided is whether the order on E. A. 769 of 1957 was passed by a Court not competent to deliver the same.

7. A judgment delivered by a Court not competent to deliver it is a mere nullity and cannot have any probative value between the parries. In the order of reference to the Full Bench in Sukh Lal v. Tara Chand, (1906) 1LR 33 Cal 68 it was stated that 'jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it'. 1m other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal wav for its decision. The jurisdiction of a Court may be restricted by a variety of circumstances. The question of jurisdiction has to be considered with reference to the value, place and nature of the subject-matter. The classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction over Ihe subject-matter is obviously of a fundamental character The genera] rule is that if the Court rendering a judgment suffers from want of jurisdiction in; respect of any one of the above matters judgment is a nullity and may be ignored. Venkatrama Ayyar, J. observed in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 at p 342:

'It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that invalidity could be set up whenever and wherever if 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.'

But this general rule is subject to certain well defined exceptions, two of them being based on Section 21 of the Civil Procedure Code and Section II of the Suits Valuation Act, also dealt with in the decision of the Supreme Court cited above

8. There is an essential distinction between inherent want of jurisdiction in a Court to entertain a cause and the irregular exercise of it. As stated by the Calcutta High Court in Hriday Nath v. Ram Chandra, ILR 48 Cal 138: (AIR 1921 Cal 34) (KB) there is a fundamental distinction between existence of jurisdiction and exercise of jurisdiction. It was pointed out by Lord Hobhouse in Malkarjun v. Narbari, (1901) ILR 25 Bom 337 (PC) that 'a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wrongact party can only fake the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot he disturbed'. In this connection, it will be useful to refer to the observations of Lord Shaw in the decision of the Judicial Committee in Rajwant Prasad v. Ram Ratan, ILR 37 All 485 at pp. 494 and 405: (AIR 1915 PC 99 at p. 101):

'Their Lordships think it is very trite and very familiar that a challenge of the method of the exercise of the jurisdiction of a Court can never in law justify a denial of the existence of such jurisdiction. The former has reference to the merits of the case, and the merits of this case have been in all points directly and substantially determined between the same parties as are now in contention at their Lordships' Bar. The familiar principle is laid down in a series of cases, of which the judgment of Lord Hobhouse in (1901) ILR 25 Rom 337 (PC) is not a very remote example.'

Henry Campbell Black observed in his Treatise on The Law of Judgments (Second Edition), Volume I, paragraph 245:

'Where the Court has jurisdiction of the parties and the subject-matter in the particular case, its judgment, unless reversed or annulled in some proper proceeding, is not open to attack or impeachment, by parties or privies, in any collateral action or proceeding whatever. 'The doctrine of this Court, and of all the courts of this country, is firmly established, that if the Court in which the proceedings took place had jurisdiction to render the judgment which it did, no error in its proceedings which did not affect the jurisdiction will render the proceedings void, nor can such errors be considered when the judgment is brought collaterally into question. This principle is not merely an arbitrary rule of law established by the Courts, but it is a doctrine which is founded upon reason and the soundest principles of public policy.'

Jurisdiction, therefore, does not depend upon the correctness of the decision. A power to decide necessarily carries with it a power to decide rightly or wrongly.

9. When a Court in the exercise of the jurisdiction it possesses, has not acted according to the mode prescribed by a Statute, it relates obviously not to any want or absence of jurisdiction but to the exercise of it in an irregular or illegal manner. The non-compliance with every rule of procedure cannot destroy the jurisdiction of the Court. Such non-compliance may in some cases amount to mere irregularity and consequently insufficient to invalidate the proceedings until it is shown that any party has been prejudiced by reason thereof. In other cases it may amount to an illegality and affect the validity of the whole proceeding.

10. In the case before us, the learned Munsiff who disposed of E. A. 769 of 1957 had admittedly pecuniary and territorial jurisdiction to entertain the application and decide the same. Then the only question is whether hehad jurisdiction to decide whether Section 4 of Act I of 1957 was a bar to the passing of an order confirming the court sale which took place prior to the passing of the Act, in execution of a decree for recovery of arrears of rent. Can it be said that the Court was deprived of the jurisdiction even to decide this question on account of Section 4 of Act 1 of 1957? We think not. If it is held that the order on E. A. 769 of 1957 will not operate as resjudirata to the petition for redelivery, the question raised in the said execution application could never be decided in any proceeding, for every time it is decided it is open to the judgmenl-deblor to say that the decision is without jurisdiction and is a nullity. Subba Rao, C. J., as be then was, observed in Venkataseshayya v. Virayyn, AIR 1958 Andh Pra 1 (FB) that 'the principle that where a statute confers on a Tribunal jurisdiction subject to a condition, it cannot clutch at jurisdiction by deciding wrongly the existence of that condition, has no application to the decision of a Court in regard to questions that legitimately arise for decision in the course of a suit maintainable therein.'

11. The Judicial Committee in Bindeswari v. Bageshwari, AIR 1936 PC 46 had to consider the scope of the principle of res judicata regarding the decision of a Court on the effect of an alienation in violation of a statutory prohibition, in a subsequent proceeding between the same parties. The facts of the case before the Judicial Committee were lhal in a prior suit it was decided that Section 12-A of the Chota Nagpur Encumbered Estates Act, 1876, which declared void any transaction to which it applied did not apply to a particular transaction. In a subsequent decision, the question was attempted to be reopened. Their Lordships took the view that the previous decision operated as a bar under Section 11 of the C. P. C. to the decision of the same issue in the subsequent suit. In the course of the judgment Lord Thankerton observed at pp. 48 and 49 as follows:

'Truly the third sub-section of Section 12-A renders void any transaction to which It is applicable, but the question as to whether It applies to a particular transaction entitles the Court to consider the construction of the section and the determination of its applicability rests with the Court. The decision of the Court in the suit of 1917 determined that the section bad never applied to the transaction of 1909, and it is difficult to follow the reasoning of the learned Judge which allowed him not only to express a strong contrary view as to the applicability of the section, which he was entitled to do, if he so chose, but to try anew the issue as to its applicability--In face of the express prohibition in Section 11 of the Code.'

12. A similar view was taken by the Supreme Court in Isher Singh v. Sarwab Singh, AIR 1965 SC 948. The question arose how far the decision in an appeal which was not competent would operate as res judicata in a sub-sequent proceeding between the same parties, their Lordship expressed the following views:

'This leads us to the next point urged by Mr. Bishen Naraln that the decision of the appellate Court in Sarwan Singh's appeal was really without jurisdiction and that even at the stage of the appeal the issue as to relationship was not necessary for deciding any Issue raised in the suit. As regards the competency of the appellate Court to record a finding, Mr. Bishen Narain submitted that under Section 96, Civil Procedure Code an appeal lay only against a decree and not against a finding which is not incorporated in the decree and that since the suit of Isher Singh had been wholly dismissed notwithstanding the finding negativing the collateral relationship set up by Sarwan Singh ahd others, no appeal lay to the District Judge from that finding and therefore the finding recorded by the learned District Judge in the appeal was incompetent and without jurisdiction. For this purpose learned counsel relied upon the terms of Section 44 of the Indian Evidence Act and upon the use of the words 'Competent Court' in that section. We have no hesitation in rejecting this submission of the leanied counsel. A preliminary objection had been raised before the appellalc Court as regards the maintainability of that appeal on the same grounds as are now urged before us and the appellate Court rejected that argument and held that the appeal was competent. A revision had been preferred to the High Court questioning the decision in the appeal adducing the same grounds about Section 90, Civil Procedure Code and that also was dismissed and that order of the High Court has now become final. Even assuming that the appellate Court erred in its construct inn of Section 96 or of the pleadings in that case, we do not consider it open to the appellant now to contend that the appellate Court had no jurisdiction to decide the appeal. The District Judge had undoubtedly jurisdiction to construe the terms of Section 96, Civil Procedure Code and even if the construction be erroneous, and that is tin-utmost learned counsel can submit, the appellate judgment was not a nullity and cannot be disregarded or attacked collaterally as passed by a Court not competent to entertain the appeal.'

13. It has been held that decisions in violation of Section 3 of the Indian Limitation Act or in violation of Section 48 of the Civil Procedure Code will not render such decisions null and void. In Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907 the question arose how far a decree passed in suit which was barred by time is legally valid. Their Lordships observed at p. 910 thus:

'Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject-matter ofthe suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said. Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap, AIR 1935 PC 85, and contended that since the Court is bound under the provisions of Section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duly of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duly, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.'

14. The legal consequence of a decision rendered in violation of Section 48 of the Civil Procedure Code was considered by the Patna High Court in Bansi San v. Debi Prasad, AIR 1961 Pat 508 wherein we find the following observation:

'On transfer of the decree by the court which had passed it, the transferee court had jurisdiction In execute the decree. It committed a sad mistake in that it execuled the decree in contravention of the provisions of Section 48 of the Code but that would not make the execution proceedings null and void.'

If a judicial decision rendered in violation of Section 3 of the Indian Limitation Act or Sec-tion 48 of the C. P. C. is not one affecting the inherent jurisdiction of a court to decide the issue between the parties, the same principle must apply to the case before us,

15. There are decisions which have taken the view that where a question of jurisdiction depends upon the existence of a fact and a party to whom it was open to prove that fact, does not do so, he is bound by the principle of constructive res judicatn even in execution proceedings from agitating that matter a second time. The question how far the principle of constructive res judicata can operate as a bar in such cases does not arise for consideration before us and we are not expressing any views thereon. But there is ample authority for theproposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no relevancy to the question whether it operates as res judicata. In the case before us there is a specific finding in the order passed by the execution court on E. A 769 of 1957 that Section 4 of Act I of 1957 does not oust the jurisdiction of the court to pass an order confirming the sale.

16. in view of the principles stated by their Lordships of the Judicial Committee in AIR 1936 PC 46 it has to be held that Hit execution court had jurisdiction to decide whether Section 4 of Act 1 of 1957 applied to the instant case. In E. A. 769 of 1957, defendants 1 to 4 specifically raised the point that Sec-lion 4 of Act I of 1957 was a bar against the confirmation of the court sale. The order passed on the said execution application holding that Section 4 is inapplicable to a case where the sale took place before the date of the Act will therefore operate as res judicata to the re-delivery application between the same parties. We are therefore in agreement with the view expressed by the courts below that the order passed on E A. 769 of 1967 operates as a bar to the redelivery application filed by defendants 1 to 4. Almost an identical question came up for consideration in Sreedhara Menon v, Karap-pan, 1962 Ker LJ 34. The facts were as follows. In execution of a decree obtained against the appellant In that case the properties belonging (o him were sold In court auction on 30-8-1956 and the sale was posted for being confirmed to 3-10-1956. The Travancore-Cochin Indebted Agriculturists Relief Act, 1956 (Act III of 1966) came into force on 10-9-1966. The appellant made an application to the execution court on 25-9-1956, which contained two prayers, first, that the sale may be set aside and second, that the appellant may be permitted to discharge the decree debt in instalments under Act III of 1966. The execution court held by order dated 16-10-1966 that the sale having been held after permitting the respondent decree-holder to set off the decree amount against the purchase money, the decree debt has been wiped out and that therefore the appellant could not pay under Art III of 1956. Vein Ptllai. J. in deciding the question observed thus:

'No appeal was taken against the order of confirmation, the appeal taken by the appellant to the Subordinate Judge and this Second Appeal, being directed only against the order dismissing the appellant's application dated September 25 the two prayers in which are both unsustainable, there being no provision in Ad III of 1956 to set aside the sale as in Ac) XXXI of 1958, and no permission being necessary and no application for permission being contemplated by law, all that is essential being, deposits in instalments from time to time The bar in Section 8 of Act IK of 1956, so far as it is germane to this case, is against making of an execution application and if before the period of the first instalment, confirmation of the sale was made, however erroneously. It hadto be vacated in due course of law. As il was, the appellant took no step to vacate tt and made no deposit all these six years. The appellant's stand is, that because of the erroneous order made on his application he could not make the deposits and that the order of confirmation is a nullity.'

The above observations support the view we have taken in this appeal.

17. It was further contended by the learn ed counsel for the appellants that the delivery proceedings based on the order of confirmation of sale are without jurisdiction being in viola lion of the statutory prohibition contained in Section 4 of Act I of 1957 and are therefore void and that the bar of res judicata does not apply to the contention of the defendants that the delivery proceedings are without jurisdiction as the point decided in E. A. 769 of 1967 was only regarding the competency of the court to confirm a court sale in the light of Section 4 of Act I of 1967. It is not necessary to decide the contention of the learned advocate for the appellants that the order passed on E. A. 769 of 1957 is not a bar to his contention that the delivery proceedings are void In view of Section 4 of Act I of 1967. It has to be said that Section 4 of Act I of 1967 does not in any way bar proceedings for delivery of property based on a sale which was confirmed by an execution court by a valid order. Though the proceedings subsequent to an order confirming a court ale and relating to get delivery of property in execution of a decree may or may not be matter relating to the execution, discharge or satisfaction of the decree within the meaning of Section 47, Civil Procedure, Code, such proceedings are not proceedings for recovery of arrears of such rent in execution of decrees. If so, there is no bar under Section 4 of Act I of 1957 to such proceedings being continued after Act I of 19A7. In Raghunandjm v. Commissioner, Income-tax, B. & O., AIR 1988 PC 101 at p. 106 Lord Macmlllan observed thus:

'The decree is only a step towards realisation, and the date of the decree is therefor plainly not the date of realisation. Nor on the date of the sale does the purchaser obtain an Indefeasible right, for under Order 21, Rules 89, 90 and 91 the sale may be set aside on various grounds. It is only where no application it made under these rules or where such application is made and disallowed that the Court under Order 21, Rule 92, makes an order confirming the sale, whereupon 'the sale shall become absolute.' It then that the process of realisation is completed and any profit or Income is realised by the decree-holder. This is so whether the property is purchased by the decree-holder himself or by a third party, for the right of set-off conferred on the purchasing decree-holder must also be dependent on the sale being rendered absolute by confirmation.

If so the position after the date of the confirmation of the sale whether it be a stranner auction-purchaser or the decree-holder auction-purchaser is that the procest of realisation is sompleted and the title to the property vestaIn the auction-purchaser with a right to the property and income accrued therefrom. There is therefore no scope for the application of Section 4 to delivery proceedings based on confirmation of sale. The contention of the learn ed advocate for the appellants on this asperl has therefore to be overruled.

18. In the result, the Second Appeal isdevoid of any merit and it is dismissed withcosts.


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