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Naharsingh and anr. Vs. Pirthisingh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberMisc. First Appeal No. 4 of 1950
Judge
Reported inAIR1952Raj62
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38
AppellantNaharsingh and anr.
RespondentPirthisingh
Appellant Advocate Gulabchandra Kasliwal, Adv.
Respondent Advocate Durga Prasad Mathur, Adv.
DispositionAppeal dismissed
Excerpt:
.....the original side but the point for our determination in this case is whether in a case where the question of jurisdiction has been already agitated and decided not only by the trial court but also by the appellate court, is it still open to the parties to reagitate the matter in the executing court. ''5. it is quite clear from the above observations that so far as the decision of the high court about the valuation and the liability of taxation in the previous year was concerned, it was clearly held that so far as that year was concerned 'the decision could not be disputed. for instance, what would happen if the latter decision of the high court is again dissented from in another case by another bench of the same 'high court, there is, therefore, no good reason to interfere with the..........that they were competent to hear and decide that appeal. the learned judges accordingly heard the appeal and decreed the suit with costs throughout. the plaintiff respondent then took out proceedings to get the said decree executed in the court of the district judge, jaipur. two separate applications were thereupon presented by the present appellants objecting to the execution of the decree on the ground that the appellate court had no jurisdiction to pass the decree and therefore it was a nullity. it was pointed out that in the case of 'kalu v. balu' and others subsequently decided by a full bench of the jaipur high court on 5th november 1949, it was held that the question of jurisdiction in the present case was not correctly decided. both these applications were dismissed by the.....
Judgment:

Dave, J.

1. The facts giving rise to this appeal are that the respondent Thakur Pirthisingh, Instituted a suit in the Court of the District, Judge, Jaipur City, for recovery of possession of certain plots of land situated in the village Korhi. Amongst other objections, it was pleaded by the defendants that the matter was exclusively triable by the Revenue Court, and that the civil Court had no jurisdiction to try and decide it. The District Judge dismissed the objection but at the same time he also dismissed the suit on other grounds, The plaintiff went in appeal to the High Court of Jaipur. There it was again contended by the defendants-respondents that the appellate Court had no jurisdiction to hear the appeal and it should be transferred to the Revenue Board under Sub-section (2) of Section 3 of the Jaipur State Grants Land-tenures Act. It was held by Verma C. J. and Ibrahim J. who constituted the Division Bench of the Jaipur High Court that the word 'proceeding' appearing in. Sub-section (2) of Section 3 of the Jaipur State Grants Land Tenures Act of 1947 did not include an appeal from a decision in a civil suit and that they were competent to hear and decide that appeal. The learned Judges accordingly heard the appeal and decreed the suit with costs throughout. The plaintiff respondent then took out proceedings to get the said decree executed in the Court of the District Judge, Jaipur. Two separate applications were thereupon presented by the present appellants objecting to the execution of the decree on the ground that the appellate Court had no jurisdiction to pass the decree and therefore it was a nullity. It was pointed out that in the case of 'KALU v. BALU' and others subsequently decided by a Full Bench of the Jaipur High Court on 5th November 1949, it was held that the question of jurisdiction in the present case was not correctly decided. Both these applications were dismissed by the learned District Judge by an order dated the 22nd December 1949 on the ground that the question of jurisdiction having been once decided inter partes was res Judicata.

2. The appellants' advocate, Mr. Kasliwal contended that an executing Court can go behind the decree to see if the Court which passed the same had jurisdiction to hear and decide the suit. He has proceeded to argue that an erroneous decision on a question of law like that of jurisdiction even though inter partes is not res judicata. The advocate for the respondent has contested this argument with equal vehemence.

3. The appellants' advocate has referred to GORACHAND v. PRAFULLA KUMAR ROY', AIR (12) 1925 Cal 907 and 'SARABJIT PRATAP v. INDERJIT PRATAP', AIR (20) 1933 All 751. In the first case it was held by a Full Bench of the Calcutta High Court that:

'where the decree presented for execution was made by a Court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's persons to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction.'

In the second case also it was held by a Division Bench of the Allahabad High Court that it was open to the judgment-debtor even at the stage of execution of decree to raise the plea that the Court which passed the decree had no jurisdiction to try the suit. It is well settled law that the executing Court can go into the question of the jurisdiction of the Court passing the decree if it has not been agitated and decided on the original side but the point for our determination in this case is whether in a case where the question of jurisdiction has been already agitated and decided not only by the trial Court but also by the appellate Court, is it still open to the parties to reagitate the matter in the executing Court. The learned advocates for the parties have not been able to cite any authority having a direct bearing on this specific point. In the two cases cited above this point was not directly in question. In the first case 'AIR (12) 1925 Cal 907', the learned Judge had very cautiously used the expression by a Court which apparently had not jurisdiction' and then he followed the above quotation by saying that within these narrow limits the executing Court was authorised to question the validity of the decree. In a case where the parties have exhausted their arguments on the question oi' jurisdiction and the Court has given its decision it cannot be said that 'apparently' it had no jurisdiction.

4. The appellants' learned advocate has next referred to 'DIST. BOARD OF DARBHANGA v. SURAJ NARAIN', AIR (23) 1936 Pat 198 and 'MEGH-RAJ GOLABCHAND FIRM V. CHANDRA KA-MAL', AIR (28) 1941 Cal 493, both of which are decisions of single Judges. In the first case 'AIR (23) 1936 Pat 198' a former suit between the Liar-ties had reached the District Judge in appeal and it was held by him that the action was not maintainable in the civil Court and that the District Magistrate was the competent authority to hear it according to Bengal Ferries Act. In a subsequent suit between the same parties for other arrears the plea of res judicata about the jurisdiction of the civil Court was raised by the other party, Relying on the authority of 'BROKEN HILL PROPRIETARY Co. LTD. v. MUNICIPAL COUNCIL OF BROKEN HILL', (1926) AC 94, it was decided by the learned Judge that the previous decision on the question, of jurisdiction was not res judicata, It was further added that in the question of jurisdiction not only the parties but the Court and the public had an interest, in the second case 'AIR (28) 1941 Cal 493 an application for execution of a decree was dismissed by the Court on the ground that it had no jurisdiction. In a subsequent application for execution when the question of res judicata about the jurisdiction was raised, it was held that the principle of res judicata had no application on the question of jurisdiction. It would appear from both these decisions that the claim or the application in the subsequent case was not in respect of the same relief which was asked for in the former suit or application. In the case Of 'BROKEN HILL PROPRIETARY CO. LTD. v. MUNICIPAL COUNCIL OF BROKEN HILL', (1926) AC 94 referred to above, the applicants were occupiers of a mine of lead and silver within the Municipality of Broken Hill and the respondents were the rating authority of the Municipality. On a question of res judicata being raised by the respondents on the basis of a previous decision of the High Court of Australia between the same parties for the previous vears, it was observed by their Lordships that 'the decision of the High Court related to a valuation and a liability to a tax in a, previous year, and no doubt as regards that year the decision could not be disputed. The present case relates to a new question namely, the valuation for a different year and the liability for that year. It is not eadem questio and therefore the principle of res judicata cannot apply.''

5. It is quite clear from the above observations that so far as the decision of the High Court about the valuation and the liability of taxation in the previous year was concerned, it was clearly held that so far as that year was concerned 'the decision could not be disputed. This authority there-fore on which 'AIR (23) 1936 Pat 198' is based goes against the appellants' argument instead of supporting it. In 'SARAT CHANDRA v. JOY SANKAR', AIR (18) 1931 Cal 546, it was held that the question whether the appeal before the High Court was competent or not is not a question which ran be gone into in the execution proceedings. In the present case also what the appellants really wanted to contest in the executing Court was that the appellate authority which passed the decree was not a competent Court of jurisdiction. To my mind, the executing Court could not sit in judgment over the decision of the High Court of Jaipur and turn down its decision on the question of jurisdiction, simply because another Bench of the High Court had taken a different view of the law in another case. If all the previous decrees of the Courts are thus set aside, because a different view on a certain question of law is taken in some other case by the High Court, it would cause an utter confusion and there would be no end to litigation. For instance, what would happen if the latter decision of the High Court is again dissented from in another case by another Bench of the same 'High Court, There is, therefore, no good reason to interfere with the decision of the Court below.

6. The appeal is dismissed with costs.

Mehta, J.

7. I agree.


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