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M.N. Hassasingh and Co. Vs. Sardarmal Bardiaya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Execution Second Appeal No. 25 of 74
Judge
Reported in1975(8)WLN75
AppellantM.N. Hassasingh and Co.
RespondentSardarmal Bardiaya
DispositionAppeal dismissed
Cases ReferredVasudev Dhanjibhai Modi v. Raja Bhai Abdul Rehman and Ors.
Excerpt:
.....the objection of the judgment-debtor if it is given effect to has the effect of nullifying the decree passed by the high court. this is not permissible in my view.;except in certain exceptional circumstances as for example, when the decree is nullify or patently without jurisdiction, it is not open to use court to go behind the decree and to question its validity. it the decree is clear and unconditional the executing court cannot but execute it. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was..........from the fats of the present case. in the present case there was a decree against the judgment-debtor passed by the trial judge on 28.8.64 and it was also confirmed in appeal on 18-1-66. the arrangement alleged by the judgment debtor in the present case is said to he dated 13-5-70. there was a decree already in existence against the judgment debts and the second appeal was pending at that time which was eventually dismissed on 27.2.70. this was not alleged in the second appeal that the decree holder having accepted the rent for a period of 100, months, has thereby adjusted the decree already passed. the adjustment of the decree was alto not got certified under order xxi rule 2 c.p.c.3. the madras case is also a full bench decision. in that case by majority of two to one it was held.....
Judgment:

J.P. Jain, J.

1. This is an execution second appeal by the judgment debtor and directed against the order of the District Judge, Jaipur City, Jaipur, dated 7th December, '74 dismissing the appeal and confirming the order passed by the Munsif (Execution Court) Jaipur City (East) on 8.10.1974 by which the objections filed by the judgment debtor were rejected. Sardar Mal Bardiya obtained a decree for eviction against the tenant-appellant from the Court of Munsif on 28.8.64 from the shop situate in Joha(sic) Bazar. The decree was confimed in appeal on 18.1.66. It was urged by the judgment-debtor in execution that on 13.5.70, during the pendency of the second appeal, the landlord namely Sardarmal Bardiya accepted rent for a period of 100 months & as such the decree could not have been passed and it cannot be executed. In support of the contention an entry in the 'Rokar' of the judgment-debtor has been signed by Sardarmal. The learned Executing Court held that the Executing Court cannot go behind the decree and he refused to consider the adjustment claimed by the judgment-debtor prior to the decision of the second appeal from the High Court. The learned Court held that an objection of adjustment, which go to nullify the decree, is not maintainable in execution. Being aggrieved of this order, the judgment debtor preferred an appeal and the learned District Judge by his order dated 7th December, '74 agreed with the view taken by the Execution Court. It is this order which is subject matter of challenge in the appeal.

2. Mr. Bhandari learned Counsel appearing for the appellant has placed reliance on Laldas Narandas v. Kishoredas Devidas and Ors. ILR 1898 (22) Bom. 463 & K.A.N. Chidambaram Chettiar v. Krishna Vathiyar and Anr. ILR 1917 (40) Mad. 233. The facts in Bombay case were that Devidas and Harilal obtained a decree on an award with costs against Shankerlal and Laldas. When they applied for execution against Laldas in order to recover his half share of the costs, he pleaded that before the proceedings had commenced the plaintiff had entered into an agreement with him that none of the costs which might be awarded by the court, should be recovered from him. It was held by their Lordships of the Bombay High Court that the existence of validity of such an agreement ought to be determined in execution under the provisions of Section 214, Civil Procedure Code, 1882 (Act No. 14 of 1882) and not in a separate suit Suffice it to say that the facts of the Bombay case are very much distinguishable from the fats of the present case. In the present case there was a decree against the judgment-debtor passed by the trial Judge on 28.8.64 and it was also confirmed in appeal on 18-1-66. The arrangement alleged by the judgment debtor in the present case is said to he dated 13-5-70. There was a decree already in existence against the judgment debts and the second appeal was pending at that time which was eventually dismissed on 27.2.70. This was not alleged in the second appeal that the decree holder having accepted the rent for a period of 100, months, has thereby adjusted the decree already passed. The adjustment of the decree was alto not got certified under Order XXI Rule 2 C.P.C.

3. The Madras case is also a Full Bench decision. In that case by majority of two to one it was held that it was open to a judgment debtor to set up an oral agreement subsequent to the filing of the suit prior to the passing of the decree in order to prevent the decree holder from proceeding to execute the decree. From the perusal of the decision it appears that the majority view of the Full Bench was based on a practice that prevailed in the Madras Presidency for a long time. Mr. Abdul Rahim C.J. referred at page 237 of the report to the following effect:

By a long course of decisions in this Presidency it has been held that an agreement made before the pasting of the decree, by which the decree was not to be executed for a certain time, is a matter to be enquired into and decided by the executing Court.

He again referred at page 238 to the practice that it bad been in that Presidency. Sheshagiri Ayyar, J. also based his opinion expressly on the practice prevailing in that Presidency. He stated that he would have hesitated a great deal before allowing such a course to be adopted if the matter were res Integra. The decision was thus based on the principle of stare decisis. The dissenting Judge Phillips, J. was not in favour of deciding the case on that principle.

4. It may also be noticed here that the view taken by the Bombay and Madras High Courts have not been accepted by the other High Courts. The earliest Calcutta view is represented in Chhoti Narain Singh v. Rameshwar Koer (1902) 6 CWN 796 Relevant extract from that judgment is given below:

A contract made between the parties to a suit in derogation of a decree which may be passed in future cannot form the subject of an inquiry under Section 244 Civil Procedure Code, in a proceeding for the execution of the decree Questions under Section 244, Clause (c), relating to the execution of a decree and arising between the patties to a suit in which the decree was passed or their representatives must be such as have reference to matters arising subsequent to the passing of the decree and not antecedent to it. An agreement not to execute a decree, if effect is sought to be given to it in execution proceedings, must be a transaction between the parties subsequent to the decree and not one which would mike the decree itself void as being in contravention of the agreement.

5. This view was also adopted by the Calcutta High Court in Benode Pal Pakraishi v. Brajendra Kumara Saha AIL 1906 (29) Cal. 810. Again, in another case Syed Hasan Ahi. v Gauzl Ali Mir ILR (1904) (21) Cal. 179 the facts were that A obtained a decree for khas possession of certain land by ousting B In execution thereof, B pleaded that there was an agreement between him and decree holder, previous to the decree, that he should not be ousted from the land and that permanent rights over the same would be granted to him by the decree holder, their Lordships held that such a question could not be gone into under Section 244 of the Civil Procedure Code Case can only be inquired into under Section 244 when the existence of a decree which is susceptible and capable of execution is conceded and it does not apply to a case where the object is to impugn the decree itself or to set up a case inconsistent with the decree which it is sought to execute. Lordships followed the earlier decisions of this Court in Benode Pal Pakrashi and Chhoti Narain Sinqh. The Bombay case was dissented.

6. In Dilsukh Rai and Ors. v. Lachhman Das and Anr. AIR 1927 Lab. 897, Shadi Lal C.J. who spoke for. The court, he d that a Court executing a decree cannot go behind the terms of the decree and must execute the decree as it stands. The Madras sate ILR 1917 (40) Mad. 233 relied upon by the other party was not approved. This view was followed in Robert Hercules Skinner v. R.M. Skinner and Ors. AIR 1937 Lah. 1937 Lah. 537 Bnide, J. speaking for the Court observed as follows:

Section 47, Civil P.C. is, no doubt, very widely worded and lays down that all questions relating to the execution, discharge and satisfaction of a decree shall be determined by the Court executing the dearer But this is, I think, an essential distinction between the functions of a Court which adjudicates on the rights of the parties and embodies the decision in a decree and the functions of a Court whose duty is merely to execute such a decree. As pointed out by the learned Judge of the Calcutta High Court in 31 Cal. 179 Section 244, Civil PC 1882, (which corresponds to Section 47, Civil PC 1908) presupposes the existence of a decree which is validly susceptible of execution. The executing court can, therefore, only go into matters relating to the execution, discharge or satisfaction of the decree which arise after the decree came into existence and result in its discharge or satisfaction and not into a pre-decree compromise like the one pleaded in this case which practically nullifies the decree.

6. The Rangoon High Court takes similar view in Mulla Ramzan v. Mg. Po Kyaing AIR 1926 Rang. 140 it was observed:

A decree which on the face of it is enforceable to the fullest extent cannot in execution proceedings be challenged as being in executable wholly or in part en account of an agreement between the parties entered into prior to the decree.

7. The came view was expressed by the Nagpur High Court to Hukamchand v. Radha Kisan and Ors. AIR 1950 Nag. 128. The Bombay decision ILR 1898 (22) Bom. 463 was dissented from and the Calcutta view was acceptd. It was observed:

An agreement not to execute a decree, if effect is sought to be given to such agreement in execution proceedings, must be a transaction between the parties subsequent to the decree and no one which would mike the decree itself void as being in its contravention.

8. In Cooperative Back, Harsana Kalan v. Ram Sarup Ravi Datt Kapur, J. took the view as see out below:

The jurisdiction of an execution Court extends to executing the decree or not executing it, only whet, it is without jurisdiction. Merely because there was an agreement previous to the decree that the debtor will have no further liability, limited or unlimited, is net a ground of jurisdiction, but can only be raised as a bar to the making of the award. Once the award is made it operates as a decree which the executing Court cannot refuse to execute.

9. The Allahabad view is found in Krishan Raj Trading Corporation v. Ram Sirsn Dass & Bros. : AIR1962All374 . The Allahabad High Court has emphatically dissented from the Madras view. While approving the Calcutta view it was observed:

The terms of Section 47 C.P.C. appear to us to be clear & unambigous Only question relating to the execution, satisfaction and discharge of a decree can be raised under that section. It is well settled that except in certain exceptional circumstances e.g., when the decree is nullity or patently without jurisdiction, it h not open to the Court to go behind the decree and to question its validity. Nor can the executing Court say that the decree should have been passed in a way different from the way in which it has actually been passed and then proceed to execute it as if it bad been passed in that other manner. If, therefore, a decree is clear and unconditional the execution Court cannot en any basis make the decree conditional or hold that it was not intended to be executed in certain circumstances because of an agreement arrived at before the decree was passed. If there was an agreement the only thing which the parties coldd do was to bring forward that agreement at the time when the decree was being passed and to have it incorporated in the decree. That not having been done the agreement, if any, must be deemed to have been superseded by the decree and the decree must be given effect in preference to the alleged agreement. Having failed to put forward the agreement at the time when the decree was being passed (for the omission the judgment-debtor could only blame itself) it was no longer open to it to put forward the agreement at the time of execution and to say that the agreement should not be honored and the decree should net be executed on that basis. Setting up of such a pre decree agreement in the execution department is, it appears to us, not permissible under Section 47, CPC.

10. It thus appears from the decisions referred to above that the pre- decree arrangement or adjustment cannot be enquired into in the execution Their Lordships of the Supreme Court in Vasudev Dhanjibhai Modi v. Raja Bhai Abdul Rehman and Ors. AIR 1970 SC 1475, laid down this principle in the following words:

The Court executing a decree cannot go behind the decree between the par tit s 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 it be erroneous is still binding between the parties.

11. It was further observed, where a decree is 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 decree, or again a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding 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 at to the jurisdiction of he Court to pass the decree does not appear on the face of the record and requires examination of the question raised and decided at the trial of which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity or the decree even on the ground of absence of jurisdiction.

12. As noticed above Sardar Mal obtained the decree against the judgment debtor on 28.8.64 and the said decree was confirmed by the appellate court on 18 1-66. The judgment debtor was not satisfied. He had filed second appeal and it was pending in the High Court. If he really adjusted the decree by the payment of rent for a period of 100 months in advance he could have got the adjustment of the decree recorded. In any event he could have raised the question in the second appeal when it was heard. The second appeal was eventually dismissed on 27-2-73, The objection of the judgment debtor if it is given effect to has the effect of nullifying the decree passed by the High Court. This is not permissible in my view. The terms of Section 47 CPC are clear and unambiguous. Only the question relating to the execution, satisfaction and discharge of a decne can be raised under mat section. It is well settled as referred to above & as laid down by the Supreme Court that except in certain exceptional circumstances as for example, when the decree is nullity or patently without jurisdiction, it is not open to the Court to go behind the decree and to question its validity. If the decree is clear and unconditional the executing Court cannot but execute it. In my opinion the objection raised by the judgment debtor has been rightly rejected by the two Courts below.

13. In the result the appeal fails and it is hereby dismissed with costs.

14. Learned Counsel prays for leave to appeal to Division Bench. I do not think it to be a fit case for certification. The leave is refused.


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