Skip to content


Bai Halima Wd/O Valimohmed Dostmohmed (Since Deceased by Her Heirs) and ors. Vs. Mohmedbhai Rajebhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR264
AppellantBai Halima Wd/O Valimohmed Dostmohmed (Since Deceased by Her Heirs) and ors.
RespondentMohmedbhai Rajebhai
Cases ReferredA.S. Sankara Pandia Thevar v. Syed Abdul Rehman Rowther
Excerpt:
.....the aforesaid provisions of the code clearly indicate that the suit must end in a judgment and decree. the suit had not effectively ended and the suit cannot be considered as disposed of. the court cannot treat the suit having been disposed of effectively as per the provisions of the code. this judgment clearly establishes that the decree which is held to be a nullity has no existence in the eye of law and parties are remitted to their original tights in the proceedings. their lordships are of opinion that this appeal should be allowed and the decree of the court of the judicial commissioner should be set aside, and that the appellants, pratab singh and abharan singh, should have a decree setting aside the decree of the 15th of december, 1899, in their suit, and declaring that the..........a nullity in a collateral or another proceedings. there is no dispute before me that the consent decree passed on june 29, 1957 was held to be a nullity in the second appeal no. 213 of 1962 decided by this court and the technical objection raised before the learned trial judge that the certified copy of the said judgment was not produced is not pressed before me, because the judgment in the second appeal does necessarily form part of the proceedings.3. now it is well settled that a decree which is a nullity has no existence in the eye of law; it has no legal efficacy; it is no order at all; it is a mere waste paper. the party to it can rely upon its invalidity when it is set up against him although it had not taken steps to set it aside. such an order does not give rise to any right.....
Judgment:

A.D. Desai, J.

1. This revision raises an interesting question and the relevant facts are that the petitioners-original plaintiffs filed civil suit No. 270 of 1956 in the Court of Civil Judge (J.D.), Jambusar against the opponent for possession of the suit premises on the ground that the suit premises were required reasonably and bona fide for occupation of the plaintiff No. 4. The said suit was compromised and the consent decree was passed on June 20, 1957. As per the decree the opponent was to handover vacant possession of the suit shop to the plaintiff No. 4 on April 18, 1960. Defendant failed to hand over possession and hence the petitioners filed Darkhast No. 73 of 1960 in the Jambusar Court but it was dismissed on the ground that the decree was a nullity. The petitioner's appeal being appeal No. 48 of 1961 to the District Court succeeded and warrant for possession was issued. Against the said judgment, the opponent preferred Second Appeal No. 213 of 1962 in this Court and it was held that the decree was a nullity. Letters Patent Appeal No. 5 of 1971 was dismissed by the Court on the ground that no such appeal lay. The petitioners, therefore, gave an application under Section 151 in the Court of learned Civil Judge (J.P.), Jambusar for reviving Regular Civil Suit No. 270 ofl956 on the ground that the decree was held to be a nullity. It was no decree in the eye of law with the result that the original suit remained undisposed of. The learned trial Judge rejected the application on the ground that the petitioners had not produced the certified copy of the judgment of the High Court in Second Appeal No. 213 of 1962 and that there was no direction given by the Honourable Court for rehearing the matter. It is this order which is sought to be challenged in this revision application.

2. The question is what is the effect on the original suit proceedings of a decree which is declared by the Court as a nullity in a collateral or another proceedings. There is no dispute before me that the consent decree passed on June 29, 1957 was held to be a nullity in the Second Appeal No. 213 of 1962 decided by this Court and the technical objection raised before the learned trial Judge that the certified copy of the said judgment was not produced is not pressed before me, because the judgment in the Second Appeal does necessarily form part of the proceedings.

3. Now it is well settled that a decree which is a nullity has no existence in the eye of law; it has no legal efficacy; it is no order at all; it is a mere waste paper. The party to it can rely upon its invalidity when it is set up against him although it had not taken steps to set it aside. Such an order does not give rise to any right whatsoever; not even a right of appeal vide Abdul Uamiyan Abdulrehman v. The Government of Bombay 44 Bom. L.R. 577 (F.B.) and United Motors' (India) Ltd. v. The State of Bombay 55 Bom. L.R. 246. In a case where a decree is nullity, three courses are ordinarily open to a party thereto. The party may ignore it; it may appeal against it; it may take steps to set it aside. In the present case the consent decree was held to be a nullity and therefore, the pet itioners gave an application to the Court which passed a decree to rehear the case from the stage prior to the passing of the consent decree because the decree was declared as invalid or a mere waste paper. Now the Civil Procedure Code provides for institution of a suit and how the suit should terminate. Section 26 of Civil Procedure Code (hereinafter to be referred to as 'the Code') provides that every suit shall be instituted b/ the present tation of a plaint or in such other manner as may be prescribed. Section 27 provides for summons and discovery and the provisions in this connection are more elaborately set out in Order V and Order XI. Order XIII provides for the production of documents. Order XVIII provides for the hearing of the suit and examination of the witnesses. Section 33 and Order XII provide for judgment and decree. Section 33 provides that the Court, after the case has been heard shall pronounce judgment, and on such judgment a decree shall follow. Further Sub-rule 3 of XXIII provides that when it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith, so far as it relates to the suit. Section 2(9) defines the word 'judgment' as the statement given by the Judge of the grounds of a decree or order. Section 2(2) of the Code defines the word 'decree' as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The aforesaid provisions of the Code clearly indicate that the suit must end in a judgment and decree. When the Court passes a decree and the decree is held to be a nullity-a waste paper in the eye of law - the suit is not concluded. The suit is still at the stage at which the invalid decree was passed because the suit is not terminated as envisaged by the provisions of Section 33 of the Code. It cannot be said that when invalid decree is passed the suit comes to an end or that the rights of the parties to the suit are merged in a decree. If the party brings to the notice of the Court, that the decree passed by it is held to be a nullity, the Court is bound to take notice of it and commence the suit from the stage at which the decree was passed as thereafter there were no valid proceedings in the suit as enjoined by the Code. The suit had not effectively ended and the suit cannot be considered as disposed of. The Court has to correct its own mistake to prevent miscarriage of justice or wrong. The Court cannot treat the suit having been disposed of effectively as per the provisions of the Code. The Court in such a case can invoke its power to do justice under Section 151 of the Code. This is the true and correct effect of the provisions of the Code. The provisions of the Code are enacted to achieve justice and therefore must be construed liberally and in a beneficial manner.

4. Now let us turn to the relevant authorities on the point. In Ranee Khujooroonissa, Widow of Enayut Hossein v. Mussamut Roushun Jehan 3 I.A. 291 the facts were that Rajah Deedar Hossein died in 1841 leaving five sons and five daughters. Enayut Hossein was his eldest son and possessed all the property of the deceased Rajah by virtue of two documents viz. a gift deed and will. Khoobunissa, widow of third son of Rajah as guardian and protector of her infant daughter Roushun Jehan filed a suit to set aside both the gift and the will and to obtain possession on behalf of daughter of a fourteen and as in the property. She also filed another suit on her behalf challenging the gift and will and claiming 2 annas share. The Court came to the conclusion that the gift deed was valid, but the will was invalid. Enayut Hossein appealed against this decision, and Khoobunissa would have had undoubted right to her cross appeal. Pending these suits Enayut Hossein had instituted a cross suit against Khoobunissa for the purpose of carrying into effect a compromise to which she was a party. There was a compromise arrived at and Khoobunissa then filed the document in which she declared that she would not any longer contest the questions between her and Enayut Hossein, that she had received certain money from him, and agreed to the terras. In the compromise document there was a statement that her daughter Roushun Jahan had assented to the compromise. The cross suit filed by Enayut Hussein against Khoobunissa was decreed as per the compromise instrument. In Enayut's appeal instruments of mutual compromise, one on behalf of Enayut Hussein and the other purporting to be on behalf of Khoobunissa and her daughter Raushan were presented and an order was made that the case be decided according to the instruments. Roushun Jehan then married Syad Ahmed Reza and she filed a suit and asserted that she was not party to the compromise, had no knowledge about the compromise between Enayut and her mother and that it was effected by virtues of collusion on the part of both of them and that the alleged gift deed and will be set aside. The trial Court decided the case partly in plaintiff's favour. From this decision both the sides appealed to the? High Court. The High Court declared the compromise invalid and then considered the plaintiff's case against the validity of the deed of gift. With reference to this part, the only appeal which had been filed was that of Enayut Hussein which was withdrawn in accordance with the term of alleged compromise. It was argued on behalf of Enayut Hussein who was defendant in the Suit to set aside the compromise, that it was too late for Roushun Jehan to ask for leave to appeal in a case which had been decided 10 year's before; and at any rate that on the compromise being set aside his own appeal should be revived. On this point the High Court decided against Enayut Hussein and refused to allow him to revive his appeal, but allowed Roushan Jehan to appeal from the decision which was against her on the ground that it was only by Enayut Hussein's is fraudulent conduct that she had been prevented from appealing before. The decisions of the High Court with regard to non-revival of the appeal were not approved by the Privy Council and the Court observed:

It appears to them that the effect of setting aside the compromise was to remit both parties to their original rights, and that if the plaintiff is to be allowed to be heard to appeal against so much of the decision as is against her, Enayut Hossin to be heard to appeal against so much of the decision as is against him.

The Privy Council then considered the case on merits. This judgment Clearly establishes that the decree which is held to be a nullity has no existence in the eye of law and parties are remitted to their original Tights in the proceedings.

5. In Manoharlal (Defendant) v. Jadunath Singh (Plaintiff) and Ors. (Defendants) I.L.R. 28 All 585 (P.C) a compromise was arrived at in a mortgage a suit between the parties which included a minor and a suit Setting aside the compromise decree was filed by the guardian of Jadunath on the ground that sanction of the Court to enter into the compromise on his behalf had not been obtained. The High Court held that the compromise decree was voidable and passed the order to set aside the decree in its entirety and consequently to decide the suit afresh. Their Lordships of the Privy Council in this connection held that the terms of the decree was far too wide and passed the following order:

Their Lordships think (and indeed the learned Counsel on both sides agree) that it will be quite sufficient if there is a declaration that the compromise and decrees are, not binding upon the minor, and that he is remitted to his original rights.

6. The reason for the Privy Council to revise the High Court's wide order of setting aside the compromise decree in its entirety and in passing the modified decree it did was that besides the minor there were adult parties to the compromise. In this case the Court did order that the minor in the circumstances of the case was remitted to his original rights.

7. In Pratab Singh and Another v. Bhabuti Singh I.L.R. (35) All. 487 P.C. the plaintiffs sued for a declaration that a compromise of certain preemption suits and decrees thereon made on their behalf when they were minors were not binding on them having been obtained by the fraud and mis-representation of their defect guardian and manager of their property. They also prayed that they might be restored to the position held by them prior to the date on which the compromise and decree were made. The trial Court decreed the suit. On appeal to the Court of Judicial Commissioner, Oudh, the decree of the trial Court was reversed and the suit was dismi ssed. An appeal to the Privy Council was taken and the Court passed the following decree:

Their Lordships are of opinion that this appeal should be allowed and the decree of the Court of the Judicial Commissioner should be set aside, and that the appellants, Pratab Singh and Abharan Singh, should have a decree setting aside the decree of the 15th of December, 1899, in their suit, and declaring that the agreement of compromise and decree of the 15th of December, 1899, in the suit of Bhabuti Singh are not binding upon them or either of them, and that they are entitled to such rights as they had before their suit was dismissed on the 15th of December, 1899.

Under this decree of the Privy Council, the minors were restored to the same position in which they were on the date on which the suit was failed against them.

8. In Bhagwan Dayal and Anr. v. Param Sukh Dass A.I.R. 1971 All. 477 an experts decree was passed against a minor and the suit was brought to set aside the said experts decree on the ground that guardian ad litem had not been properly appointed. The High Court set aside the decree holding that the proceedings taken to appoint guardian ad litem were invalid and the Court whose duty was to appoint guardian ad litem had jurisdiction to revive the suit under the provision of Section 151 of the Code. The same decision was followed in Talib All Shah v. Piarey Lai and Anr. : AIR1930All644 and Ali Yagin v. Bhagwan Das and Ors. A.I.R. (1947) All. 357. In Daroga Singh v. King-Emperor A.I.R. (1924) Pat. 758, a consent decree was challenged in a suit and the same was held to be invalid. Thereafter an application was made in the original suit to revive the same and the same was granted on the ground that effect of setting aside the compromise was to remit both the parties to their original rights. To the same effect is a decision in Ram Swarup Singh and Ors. v. Kamala Prasad Singh and Ors. : AIR1950Pat350 . The Kerala Court has also taken the same view in Mary Tthreys Fernando v. C.I. Philip A.I.R. 1958 Ker. 172.

9. Mr. Shelat appearing for the opponent relied on a decision in Bhimji Govind Kulkami v. Rakmabai Kom Govind Kulkarni and Anr., I.LR. 10 Born. 338. It is a judgment of a Division Bench. In that case consent decree was passed in a suit and subsequently said decree was challenged by filing another suit on the ground that the same was obtained by fraud and collusion. The decree was set aside and thereupon the party applied to restore the original suit on file. The trial Court refused this application and the matter was taken to the Court in revision. The High Court held:

We cannot, however, take this view of the effect of the decree obtained by the opponent No. 1. When the applicant's decree was set aside, it was not reversed. It was only by a Court of appeal that it could have been reversed. The decree obtained by the opponent No. 1 in a separate suit left the applicant's decree legally complete, and amounted only to a declaration that it should 'avail nothing for or against the parties' to opponent's suit, 'who were affected by it' The appli cation, cannot, therefore, be granted.

It must be noted that the decision of the Privy Council in Khujoorinessa (Supra) was not brought to the notice of Their Lordships when the Court made the aforesaid observations. The Court also did not notice that the decree which is a nullity has no existence in the eye of law vide Addullamiyan Abdul Rehman (Supra). No doubt the decision of the Division Bench is binding upon me, but in view of the fact that the aforesaid decision of the Privy Council was not brought to the notice of the Court, the decision cannot have binding effect. In short this decision of the Bombay High Court is contrary to all the principles laid down aforesaid three decisions of the Privy Council.

10. Mr. Shelat then relied upon the decisions in In re. Assistant Commissioner of Labour A.I.R. 1924 Madras 489 and Kanumarla Polamma (died) and Ors. v. Dandaga Sooramna and Ors. : AIR1950Mad301 wherein the Madras High Court had taken the view fiat the Court had no inherent power under Section 151 to revive a suit in which a decree was passed but subsequently declared invalid. The decision of the Madras High Court in Assistant Commissioner of Labour (Supra) has not been accepted by the Allahabad High Court in the cases of that Court referred to hereinabove. It must be noted that in later decision reported in A.S. Sankara Pandia Thevar v. Syed Abdul Rehman Rowther : AIR1957Mad512 the Madras High Court has itself taken the view that in such cases provisions of Section 151 can be attracted and decision in Bhimaji Govind Kulkarni (Supra) of the Bombay High Court was dissented from. It clearly appears to me that a Court has extensive inherent power under Section 151 of the Code to do justice; there is nothing in the section to limit its power. Therefore, a Court can exercise its inherent power to revive a suit wherein the Court had passed a decree which is nullity; for no act of the Court can prejudice the rights of the parties. If a Court commits a mistake it has always a right to correct the same under Section 151 of the Code.

11. The next question that arises is from what stage the proceedings are to revive. In the present case the decree was set aside by the Court on the ground that the decree did not indicate the necessary satisfaction of the Court about the existence of the ground under Section 13(1) (g) (h) of the Bombay Rents, Hotel and Lodging House Rates Control Act. Prior to the decree the parties had arrived at a compromise and this compromise cannot be said to have merged in the unlawful decree. The decree passed in pursuance of the compromise is held to be a nullity as the Court had not made any attempt to satisfy itself as to the existence of the ground under Section 13(1)(g)(h) of the Bombay Rents, Hotel and Lodging House Rates Control Act and therefore, the stage at which the suit is revived is the stage of presenting the compromise in the Court and the suit requires to be revived from this stage.

12. For the reasons aforesaid the order passed by the learned trial Judge dismissing the application of the petitioner to revive Regular Civil Suit No. 270 of 1956 is set aside and it is ordered that the said application is allowed and the suit is to be revived from the stage at which the compromise was presented to the Court.

The suit is of the year 1957. It is, therefore, an old one. The parties are litigating in the Court since last 19 years. It is therefore, directed that the suit should be disposed of by learned trial Judge within one month from the receipt of the record.

13. The result is that the Rule is made absolute with no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //