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S. Sathinarayanan Vs. Bhagwandas Bathija Kanyalal and Sons, Salem - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 370 of 1982
Judge
Reported inAIR1983Mad264; (1983)2MLJ382
ActsCode of Civil Procedure (CPC), 1908 - Sections 47; Tamil Nadu Relief Undertakings (Special Provisions) Act, 1969 - Sections 4; Evidence Act, 1872 - Sections 115
AppellantS. Sathinarayanan
RespondentBhagwandas Bathija Kanyalal and Sons, Salem
Appellant AdvocateT.S. Subramaniam, Adv.
Respondent AdvocateR. Vedantham and ;S. Ramalingam, Advs.
Cases ReferredVellayan Chettiar v. Government of Madras
Excerpt:
commercial - provision - section 47 of code of civil procedure, 1908, section 4 of tamil nadu relief undertaking (special provisions) act, 1969 and section 115 of evidence act, 1872 - petition challenging correctness of decree on ground that decree was without jurisdiction and nullity - petitioner accepted decree and had also made part payment toward decree and only thereafter he had come forward with application under section 47 seeking declaration that decree was nullity - above said conduct of petitioner discloses that it was farthest from contemplation of petitioner that he wanted to avail benefit of stay under provision of act - petitioner not entitled to have benefit of stay and in such event he cannot complain that court had chosen to proceed with trial of suit contrary to stay and.....order1. the second defendant in o.s.no.503 of 1977, first additional sub-court, salem is the petitioner in this civil revision petition. that suit was instituted by the respondent herein for the recovery of a sum of rs.15,525 with subsequent interest and costs against the south india glass and enamel works ltd. (hereinafter referred to as the company) by its managing director sri.s.sathyanarayanan and the petitioner herein (who figured as defendants 1 and 2) on the basis of three hundies exs a-1 to a-3 dated 4-11-1976 for rs.5,000 each executed by the company and the petitioner herein, in the written statement filed by the company the borrowing was admitted but it was stated that the petitioner had nothing to do with the borrowing and that he had signed the hundies in his capacity as the.....
Judgment:
ORDER

1. The second defendant in O.S.No.503 of 1977, First Additional Sub-Court, Salem is the petitioner in this civil revision petition. That suit was instituted by the respondent herein for the recovery of a sum of Rs.15,525 with subsequent interest and costs against the South India Glass and Enamel Works Ltd. (hereinafter referred to as the company) by its Managing Director Sri.S.Sathyanarayanan and the petitioner herein (who figured as defendants 1 and 2) on the basis of three hundies Exs A-1 to A-3 dated 4-11-1976 for Rs.5,000 each executed by the company and the petitioner herein, In the written statement filed by the company the borrowing was admitted but it was stated that the petitioner had nothing to do with the borrowing and that he had signed the hundies in his capacity as the managing Director and not in his individual capacity. Further, invoking the provisions of Tamil Nadu Act 21 of 1969 (hereinafter referred to as the Act), the company prayed that further proceedings as against it should be stayed. In the course of the written statement filed by the petitioner, it was contended that the respondent was attempting to exploit a free hand signature of the petitioner on the hundies affixed at the instance of the respondent to fasten liability on him in his individual capacity. The petitioner also stated that as a result of the use of the rubber stamp on behalf of the company and the affixing of the signature by its Managing Director in that space the free hand signature of the petitioner was likely to be affected and therefore, it was that the petitioner again affixed his signature to the hundies. The petitioner thus disputed his individual liability on the basis of the hundies sured upon.

2. In tune with the stand taken by the Company in its written statement that it is entitled to invoke the benefit of the provisions of the Act in I.A. 1483 of 1977 in O.S. 503 of 1977, an application was filed purporting to be under S. 151 of the Civil P.C. and S. 4(b) of the Act, praying for stay of all further proceedings in the suit. In the affidavit filed in support of that application by the petitioner herein in his capacity as the Managing Director, the petitioner had stated that the Company (though wrongly described as firm) had fallen sick and that it had been taken over under G.O.Ms.No.1163 dated 13-10-1977, for the purpose of being nursed to a revival and that the Company is therefore a relief undertaking and hence suits against such a relief undertaking should be stayed. In paras 2 and 3 of the affidavit, reference has been made only to the Company and in para 4, the relief prayed for in that application has been confined only to the Company on the footing that it is a relief undertaking still it would be open to the court to proceed with the trial of the suit and direct the payment of the amount after the cessation of the notification to that effect and that in any event the suit against the petitioner can be proceeded with and a decree can also be passed subject to the direction that any decree passed subject to the direction that any decree passed against the petitioner shall not be enforced against the Company during the period of its being notified as a relief undertaking.

On 20-03-1978 the learned Principal Subordinate Judge, Salem, passed an order in I.A.No.1483 of 1977 allowing it in part and staying the suit as against the petitioner C.R.P. 2401 of 1978 was filed by the petitioner against that order and on 27-9-1979 this court held that when the hundies by themselves do not disclose that the petitioner had executed them in his individual capacity, prima facie, it has to be taken that the Company, should also be made available to the petitioner. In this view, stated to have been arrived at on the basis of the representations a made on behalf of the petitioner before this court, leaving the question of the execution of the hundies by the petitioner in his individual capacity or otherwise open to be decided at the appropriate stage of the proceedings the civil revision petition was allowed. In so far as the Company is concerned it is not now in dispute that by a series of notifications issued periodically under the provisions of the Act proceedings as against such relief undertakings as the Company had been stayed between 14-10-1977 and 14-10-1980.

The suit which had meanwhile stood posted to several dates had been adjourned from time to time and stood posted to 4-11-1980 from which date it was announced to 18-11-1980. On that day, neither the Company nor the petitioner appeared before the court and no notification extending the stay beyond 14-10-1980 was also placed before the court. In that situation the Company and the petitioner were set ex parte and the clerk of the respondent was examined as P.W. 1 and accepting his evidence, the learned First Additional Sub-ordinate Judge, Salem, granted a decree in the suit as prayed for by the respondent with costs.

3. Thereafter on 19-3-1981, the Company as well as the petitioner filed I.A. 189 of 1981 and I.A. 190 of 1981 in O.S. 503 of 1977 to excuse a delay of 121 days in filing the application to set aside the ex parte decree and also to set aside the ex parte decree passed against the Company as well as the petitioner. On opposition by the respondent the learned Second Additional Subordinate Judge, Salem, by order dated 15-4-1981 dismissed the application in I.A. 189 of 1981, the petition filed by the Company and the petitioner in I.A. 190 of 1981 to set aside the ex parte decree against it and also its futile attempt to set aside the decree. However, the petitioner preferred C.R.P. 1869 of 1981 to this court against the order of dismissal in I.A. 189 of 1981 in O.S. 503 of 1977. On 7-7-1981, the order of the learned Second Additional Subordinate Judge, declining to condone the delay was upheld and the civil revision petition was dismissed.

4. With a view to realise the amounts due under the decree, meanwhile, the respondent herein filed R.E.P.No.35 of 1981 on 20-1-1981 and prayed for the attachment and sale of the properties belonging to the petitioner which had earlier been attached before judgment on 26-11-1977. Payments were made by the petitioner towards the decree on 22-7-1981 and part satisfaction of the decree was also recorded by the executing Court. While so on 29-7-1981, the petitioner herein filed R.E.A. 746 of 1981, purporting to be under S. 47 of he Civil P.C praying for a declaration that the decree passed on 18-11-1980 in O.S. 503 of 1977 against the petitioner is null and void and is of no effect. The main ground urged by the petitioner in paras 7 and 8 of that application was that the trial of the suit had been proceeded with on 18-11-1980 contrary to the stay which endured till 14-10-1981 and that the trial cannot be split up against the petitioner and the company and therefore, the decree passed in O.S. 503 of 1977 is one without jurisdiction and therefore a nullity. That application was opposed by the petitioner about the extension of the stay after 14-10-1980 and in the absence stay, the court was justified in proceeding to deal with the suit and also in passing an ex parte decree against the petitioner and the Company, as it did. An objection was also taken that a valid decree passed in accordance with law has to be set aside in a manner known to law and that the court had no jurisdiction to declare such a decree void. The respondent also disputed the extension of the stay beyond 14-10-1980. The effect of the stay according to the respondent was only to suspend the action and not to wipe out the debt in its entirety and therefore, the decree would remain unaffected.

5. The learned First Additional Subordinate Judge Salem, who enquired into this application, found that the notification extending the stay up to 14-10-1981 from 14-10-1980 was not brought to the notice of the Court on 18-11-1980 when the suit was posted and in the absence of anything to put the court on notice about he continuance of the stay the court could not have assumed its continuance for a further period and was therefore in order in proceeding to deal with and dispose of the suit. In that view the decree was held to be a valid one passed by a court which had jurisdiction to do so. In the result. R.E.A. 746 of 1981 was dismissed. It is the correctness of this order that is challenged in this civil revision petition.

6. The learned counsel for the petitioner contended that the court below had proceeded to deal with the suit against the petitioner on 18-11-1980 despite a notification under S. 4 of the Act, extending the stay of proceedings against a relief undertaking till 14-10-1981 and the course adopted by the court below would therefore be contrary to law and consequently the decree passed by it would be a nullity. In this connection it was also stated that the knowledge of extension of stay by notification on the part of the court was really not material. Alternatively it was contended that when it is brought to the notice of the court that the trial of the suit had been proceeded with by it contrary to the notification extending the benefit of stay, it was the duty of the court to rectify the defect. In support of these contentions, reliance was placed by learned counsel for the petitioner on Kiran Singh v Chaman Paswan, : [1955]1SCR117 , Sadananda Saha v Union of India. : AIR1956Cal317 , and Nachimuthu Chettiar v Moorthammal (1977) 90 MLW 252. On the other hand, the learned counsel for the respondent submitted that the Sub Court at Salem undoubtedly had the jurisdiction to try the suit and that at no point of time, it lacked such jurisdiction and therefore, the passing of a decree by that court, which had the jurisdiction and therefore, the passing of a decree by that court, which had the jurisdiction to do so, cannot be characterised to be nullity.

Referring to the proceedings initiated by the Company as well as the petitioner in I.A. 189 of 1981 and 190 of 1981, it was pointed out that the notification extending the stay up to 14-10-1981 was not at all put forth therein by the petitioner as a ground for invalidating the decree passed and that the course adopted by the court in having proceeded with the suit would at best amount to an irregularity which had been waived by the petitioner and therefore the petitioner cannot be heard to complain about it. Drawing attention to the circumstance that the notification extending the stay up to 14-10-1981 was within the knowledge of the petitioner and that he did not bring it to the notice of the court the learned counsel would further contend that the petitioner cannot take advantage of his own lapses or omission and seek the assistance of the court to declare that the decree passed is a nullity.

Stressing on the personal liability of the petitioner on the hundies sued upon as shown by those documents, the learned counsel for the respondent submitted that whatever might have been the position as regards the company the petitioner cannot claim the benefit of the notification extending the say and therefore, the validity of the decree cannot be challenged. Attention was also drawn to the fact that no objection as to the jurisdiction of the Sub Court to pass the decree appears on the face of the record but it required a detailed examination of the questions raised and decided at the trial which could have been but had not been raided and therefore, the objection as to the validity of the decree even on the ground of absence of jurisdiction cannot be countenanced according to the learned counsel for the respondent. The decisions in Vasudev Dhanajibhai Modi v Majabhai Abdul Rahman : [1971]1SCR66 : Inderif C Parekh v B.K. Bhatt : 1974CriLJ906 Gopilal J Nichani v Trac Industries and Components Ltd., Madras : AIR1978Mad134 , and Dhirendranath Coraj v Sudhir Chandra Ghose : [1964]6SCR1001 were also relied on by the learned counsel for the respondent in support of the contentions raised by him.

7. The principal question that has to be considered is whether the petitioner can claim the benefit of stay under the notification issued under the provisions of the Act. it is not in dispute that the Sub Court at Salem, where the suit O.S. 503 of 1977 was instituted had jurisdiction to entertain and try the suit against the petitioner and the company. It is also not in dispute that the company had been properly impleaded in the proceedings having been represented by its Managing Director the petitioner herein and the petitioner had also been impleaded as an individual (as the second defendant) Equally it is beyond controversy that the provisions of the Act do not out the jurisdiction of the civil courts vested in them under S 9 of the Civil P.C. to try suits of a civil nature. it has earlier been noticed how the company has not chosen to dispute the validity or legality of the decree passed against it on 18-11-1980 and it would therefore be unnecessary to refer to any further.

The suit had been instituted for the recovery of money on the basis of three hundies which have been marked as Exs A-1 to A-3 in the suit. In all the three hundies the petitioner had signed once in his capacity as the Managing Director of the Company in the interspace made available by the affixture of the rubber stamp of the company containing the name of the Company and the designation of the petitioner as managing Director. In addition independently of his representative capacity as the Managing Director of the Company, the petitioner has affixed his signature on his own behalf as an individual in all the hundies well away and distinct from his signature in his capacity as the Managing Director of the Company. The liability is also described to be joint in the sense that the Company represented by the petitioner and the petitioner have undertaken to pay the amount covered by the hundies to the respondent after 90 days.

Prima facie, therefore, the contents of the hundies disclose that the Company represented by the petitioner as the Managing Director and the petitioner in his capacity as an individual had both rendered themselves liable for the repayment of the amounts covered by the hudies sued upon. There is nothing to indicate that the signature of the petitioner in his individual could not have claimed the benefit of stay under the provisions of the Act as a relief undertaking alone and not an individual had been contemplated by that Act. However, it is seen from the order in C.R.P. 2401 of 1978 that the stay granted to the Company as a relief undertaking had also been extended to the petitioner had assigned the hundies for and on behalf of the company. There does not appear to have been any basis at all for this. The hundies do not appear to have been made available to the Court for scrutiny. Indeed it has been observed in the course of that order as follows:-

'It is claimed that the second defendant has signed the hundies for and on behalf of the first defendant company as its Managing Director. If this is the only description found in the hundies it cannot be said that the second defendant has subscribed to the hundies in his individual capacity as well'.

7-A. Again, the court the has stated thus :-

'This conclusion arrived at on the basis of the representations made before this court, is confined only for the purpose of the grant or otherwise of the stay under the Act. It is open to the parties to the proceedings in the suit to ultimately establish as to whether the second defendant has executed the hundies in his individual capacity or not.

This is an issue which is left open to be decided at the appropriate stage of the proceedings'.

The order thus passed on the footing that the hundies had been signed by the petitioner on behalf of the Company as its Managing Director and that is the only description found therein. This, as could be seen from the hundies Exs. A-1 to A-3, is not correct. In any case, the observation extracted above would not preclude an examination of the capacity in which the petitioner executed the hundies viz in his individual capacity as well or not. Further it had earlier been noticed that in I.A.1483 of 1977 in O.S. 503 of 1977 out of which C.R.P. 2401 of 1978 arose he relief had been put forth and proved for in paras 2 to 4 of the affidavit in support of that application only on behalf of the Company and not the petitioner. Apparently this aspect had been lost sight of for it if had been brought to the notice of the court, then it would not have at all embarked upon the availability of the benefit of stay as regards the petitioner as well. Thus on a consideration of the hundies as well as the basis upon which the earlier application in I.A. 1483 of 1977 was made. it is magnifies that the petitioner was not only not entitled to the benefit of stay under the provisions of the Act but did not even pray for such a relief.

It is no doubt true that the order in C.R.P. 2402 of 1978 proceeds on the footing that the petitioner is also entitled to the benefits of stay under the Act : but that, as pointed out earlier was on account of the assumption that the petitioner had signed the hundies only on behalf of the Company on the basis of the one sided representations made on behalf of the petitioner before the court; Under those circumstances the petitioner, whose liability as an individual was distinct and separate from that of the Company was not entitled to the benefits of stay as it was only that was sought to be enforced in the suit against him. In such a situation the principle laid down by the Supreme Cour in Inderjit C. Parekh v B.K.Bhatt : 1974CriLJ906 and that in Gopilal J Michani v Trac Industries and Components Ltd, Madras : AIR1978Mad134 , would apply. In the first of these cases the Supreme Court was dealing with the comparable provisions of the Bombay Relief Undertakings (Special Provisions) Act (96 of 1958). There the question arose whether pursuant to a notification issued by the Government of Gujarat the pending prosecutions against the appellants therein under the provisions of the Employees' Provident Funds Scheme are liable to be staved. In holding that individual obligations and liabilities of the directors and other officers of the undertaking should not be covered by the language of the statute and that the injunction of immunity could not be extended to such matters the Supreme Court observed at page 1185 as under :-

'Thus neither the language of the statute nor its object would justify the extension of the immunity so as to cover the individual obligations and liabilities of the directors and other officers of the undertaking. If they have incurred such obligations or liabilities as distinct from the obligations or liabilities of the undertaking they are liable to be proceeded against for their personal acts of commission and omission. The remedy in that behalf cannot be suspended nor can a proceeding already commenced against them in their individual capacity be stayed. Indeed it would be strange if any such thing was within the contemplation of law'.

To similar effect is the decision in Gopilal J Nichani v Trac Industries and Components Ltd., Madras : AIR1978Mad134 . In that case the court held that a contract of guarantee is a separate contract between the creditor and the guarantor and therefore there is nothing in the provisions of Tamil Nadu Act 21 of 1969 which would apply to prevent further proceedings in an application or a suit initiated by the creditor against such guarantor. Having regard to the individual liability of the petitioner which is established by the hundies of the petitioner to pray for any stay except taking umbrage along with the Company under the provisions of the Act, the petitioner cannot now be heard to state that he is entitled to the benefits of the Act and that in contravention thereof a decree had been passed against him and therefore such a decree should be declared a nullity.

8. Even assuming that the petitioner was in some manner entitled to the benefits of stay under the provisions of the Act, then it was plainly the duty of the petitioner to have brought it to the notice of the court. In other words having failed to inform the court about the availability of the benefit of stay under the provisions of the Act even to him the petitioner cannot now turn round and find fault with the court for having proceeded to deal with and dispose of the suit on 18-11-1980. This is not one of these cases where a stay is ordered by a superior court in relation to proceedings pending before an in ferrior cout, in which case, ordinarily, there would be a communication of that order of stay by the superior court to the inferior court directing the later to hold up the proceedings before it so long as the stay lasts. Such is not the case here as the notification was not within the knowledge of the court and it ought to have been placed before court in order tenable the court to know that the stay had been further extended. If, without any knowledge of this notification, the court proceeds to deal with the suit, then it cannot be said that the court acts without jurisdiction in such cases.

In Mulrai v Murti Raghunathji Maharaj : [1967]3SCR84 the Supreme Court had to consider whether the permission to sue, granted at a time when there was a stay order, was nullity. In that case also, as in this the court which was dealing with the matter had jurisdiction to deal with the application and the only question was whether an order passed without the knowledge of the order of stay would be valid. In dealing with this question, the Supreme Court pointed out that an order of stay order is not brought to the notice of the court knows of the order, it cannot be expected to carry it out and that if a stay order is not brought to the notice of the court and the court carries on proceedings in ignorance thereof it can hardly be said that the court had lost jurisdiction because of an order about which it has not knowledge. Though the Supreme Court in that case dealt with an order of stay passed by a court, there is no difference in the applicability of the principle to a case like this, where the court had proceeded with the suit in ignorance of the extension of the stay 14-10-1981 and that would not as pointed out by the Supreme Court affect the jurisdiction the court to pass the decree.

It was also been pointed out in this decision that when the court gets knowledge of the passing of an order in contravention of an order of stay, it is not powerless to under any injustice that might have been caused to the party in whose favour the stay order was passed. Placing strong reliance on this, the learned counsel for the petitioner pleaded for setting aside the decree against the petitioner. Normally, it would be open to the court to make amends for the resulting injustice if any as a consequence of the court passing an order without the knowledge of an order of stay relating to the very same proceedings. The liability of the petitioner under the hundies sued upon is indisputable as seen earlier and the passing of a decree with reference to such a liability against the petitioner does not result in any injustice deserving remedial corrections. In this case the petitioner as well as the company had already taken proceedings in I.A. 189 of 1981 and 190 and 1981 to excuse the delay in filing the application to set aside the ex parte decree and also to set aside the ex parte decree against the petitioner and the company. The application to condone the delay viz I.A. 189 of 1981 I.A. 190 of 1981 was also dismissed. In other words, the passing of the decree ex parte was confirmed by the court below and that has also been confirmed by this court in C.R.P. 1869 of 1981.

As a consequence of the dismissal of I.A. 189 of 1981 I.A. 190 of 1981 was also dismissed. In other words, the passing of the decree ex parte was confirmed by the court below and that has also been in a manner upheld by this court. Apart from it is it, it is also seen from the execution proceedings that the petitioner had accepted the validity of the decree and had also made part payments resulting the entering up of part satisfaction of the decree by the respondent. Above all, it has earlier been found that the petitioner is not a person who is entitled to the benefit of stay under the provisions of the Act and therefore, the court while it proceeded to try and dispose of the suit against him, cannot be stated to have committed any irregularity which should be set right when the court becomes aware of the order. Having regard to these considerations, the petitioner cannot claim now that the decree against the petitioner ought to be set aside.

9. Again, before the petitioner can succeed in showing that the decree passed by the court below on 18-11-1980 is a nullity, it has to be established that the court did not have jurisdiction to entertain the suit and further that on the face of the record without further examination, the absence of jurisdiction is made out. In this case the Sub Court at Salem was a court of competent jurisdiction to entertain and try the suit. The decree had been passed by such a court. The objections to the jurisdiction of the court to pass the decree does not appear on the face of the record. No objection was also raised by the petitioner in that regard either at the time of filing of I.A. 189 of 1981 and 190 of 1981 or in the course of execution proceedings. Under these circumstances as pointed out by the Supreme Court in Vasudev Dhanjibhai Modi v Rajabhai Abdul Rahman : [1971]1SCR66 it will not be open to an executing court to go behind the decree and entertain and objection that such a decree was incorrect either in law or on facts. In dealing with this question the Supreme Court pointed out at page 1476 as under :-

'A court executing a decree cannot go behind the decree between the parties 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 if it be erroneous is still binding between the parties... 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 proceedings if the objection appears on the face of the record; where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction'.

10. Ultimately, the Supreme Court pointed out that if for the purpose of determining out that if for the purpose of determining whether the court which passed the decree had jurisdiction to try suit, it was necessary to determine facts on the decision of which the question depends and the objection does not appear on the face of the record the excuting court cannot enter upon an enquiry into those facts. The objection regarding the want of jurisdiction of the Sub Court, Salem, to try the suit does not appear on the face of the record and the ascertainment of that question would involve an investigation and examination of the questions raised and decided at the trial and such an investigation cannot be permitted in an execution proceeding as to disclose the jurisdiction of the court which passed the decree. IN this view also the objection raised by the petitioner cannot be sustained.

11. Earlier, it has been seen that the petitioner in the course of the proceedings in I.A. 189 of 1981 and 190 of 1981 and also in the earlier stage of the execution proceedings did not put forth the availability of the benefit of extension of stay till 14-10-1981 and the violation thereof by the court in proceeding with and deposing of the suit on 18-11-1980 as a ground in support of the invalidity of the decree. The petitioner, whose liability on the tenor of the hundies was personal and individual was not a person entitled to the benefit of the stay under the provisions of the Act. Even on the assumption that the petitioner was so entitled then at best, it could only be for his benefit and it was open to the petitioner to give up or waive such a benefit. There was no question of public interest or the interest of a relief undertaking being involved therein. That benefit even it was available to a person like the petitioner could be waived by the party without in any manner affecting the jurisdiction of the court.

The petitioner who it is not denied had knowledge of the notification extending the benefit of the notification extending the benefit of stay till 14-10-1981 did not bring it to the notice of the court on 18-11-1980 when the suit was decreed on 18-11-1980 even at the time when the petitioner had filed I.A. 189 to 1981 and 190 of 1981 to execuse the delay in filing the application to set aside the ex parte decree and also to set aside the ex parte decree he did not rely upon the extension of the stay till 14-10-1981, as a ground which would justify the court in setting aside the decree passed on 18-11-1980. Further when the decree was put into execution by the respondent the petitioner accepted the decree as valid and had made three payments of Rs.1,000/- each towards the decree on 22-4-1981 part satisfaction of which had also been recorded in the course of the execution proceedings. This conduct of the petitioner who was well aware of the notification extending the stay of the notification extending the stay up to 14-10-1981 in not having put forth that claim either on 18-11-1980 when the suit was posted or at the time of the filing of I.A. 189 of 1981 and 190 of 1981, or even during the initial stages of the execution petition would clearly disclose an intentional abandonment and relinquishment of the benefit conferred on him and that would amount to a waiver. If the benefit could be waived as has been done in this case, then anything done by a court deviating from that benefit would not destroy the foundation or the authority of the court for entertaining or triving the proceedings.

In this connection, the judgment of the Supreme Court in Dhirendranath Gorai v Sudhir Chandra ghose. : [1964]6SCR1001 is apposite. There the Supreme Court had to consider the question whether a judgment-debtor who received the notice of the proclamation but did not attend the drawn up of the proclamation or did not raise an objection with reference to the non-compliance with S. 35 of the Bengal Money Lenders Act, can complain of substantial injury as a result of the non-observance of the provisions of the Act and seek to set aside the sale in an application under Order 21, Rule 90 C.P.C.An argument was put forth that irrespective of whether S. 35 of the Bengal Money Lenders Act was mandatory or directory, a sale held in violation thereof was only illegal and not a nullity. Subba Rao J in dealing with this on the assumption that S. 35. Bengal Money Lender Act is mandatory, proceed to observe as under (at p 1304):-

'Even then, the question arises whether an act done in breach of the mandatory provision is per force a nullity. In Ashutosh Sridar v Baharilal Kirtania ILR (1908) Cal 61 Mookerjee J after referring to Macnamara on 'Nullity and Irregularities observed :-

'..........no hard and fast line can be drawn between a nullity and an irregularity but this much is clear, that irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding or apply to its whole operation whereas a nullity is a proceeding that is taken without any foundation for it is so essentially defective as to be of no avail or effect whatever or is void and incapable of being validated'. 'Whether a provision falls under one category or the other is not easy of discernment but in the ultimate analysis it depends upon the nature, scope and object of a particular provision. A workable test has been laid down by Justice Coleridge in Holmes v Russel (1941) 9 Dowl 487 which reads - 'It is difficult sometimes to distinguish between an irregularity and what is a nullity is to see whether the party can waive the objection : if he can waive it, it amounts to in irregularity, if he cannot, it is a nullity.

A waiver is an intentional relinquishment of a know right, but obviously an objection to jurisdiction cannot be waived for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book 'On the Interpretation of Statutes' 11th Edn at page 375 described the rule thus-

'Another maxim which sanctions the non-observance of statutory provision is that caliber licet renuntiare juri prose introducto. Every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. The same rule is restated in 'Craies on Statute Law' at page 269 thus - 'As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such condition will not be considered as indispensable and either party may waive them without affecting the jurisdiction of the court'.

12. The Judicial Committee in AL VR Vellayan Chettiar v. Government of Madras, (1947) 74 Ind App 223 : Air 1947 PC 197 pointed out that there was no inconsistency between the proposition that the provisions of Section 80 of the Civil P.C. were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefits they were provided....... Where the court acts without inherent jurisdiction a party affected cannot by waiver confer jurisdiction on it which it has not. Where such jurisdiction is not wanting a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interest, but in the interests of the party that waves it.

13. Finally, the Supreme Court concluded that S. 35 of the Bengal Money Lenders Act was intended only for the benefit of the judgment-debtor and therefore, it was open to him to waive the right conferred on him under that provision. In this case the Sub Court at Salem had jurisdiction to entertain the suit and even on the footing that the petitioner was entitled to the benefit of stay under the provisions of the Act and such a provision was mandatory one it was open to the petitioner to waive it and indeed it was so waived by the petitioner in not having projected this claim either at the hearing of the suit or in the application for setting aside the ex prate decree or even at the preliminary stages of the execution proceedings. The petitioner had accepted the decree and had also made part payments towards the decree and only thereafter he had come forward with the application purported to be under S. 47 C.P.C. seeking a declaration that the decree is a nullity. Having regard to the circumstances of the present case even on the assumption that the petitioner was entitled to the benefit of stay it was only for his benefit and such a benefit could always be given up or waived buy the petitioner. The conduct of the petitioner referred to already clearly discloses that it was farthest from the contemplation of the petitioner that he wanted to avail himself of the benefit of the stay under the provisions of the Act and therefore, a clear case of waiver is spelt out in this case. Under the circumstance the petitioner cannot now put forth that the trial of the suit was proceeded with contrary to the stay and therefore, the resultant decree is a nullity.

14. That only leaves for consideration the decision relied on by the learned counsel for the petitioner. In Kiran Singh v Chaman Pawan : [1955]1SCR117 the Supreme Court was considering the validity of a decree passed by the appellate Court which did not possess pecuniary competency to entertain the appeal. The Supreme Court took the view that no prejudice had been caused and therefore, no case had been made out for interfering general principles with reference to the invalidity of a decree, does not assist the petitioner. The decision in Sadananda Saha v Union of India. : AIR1956Cal317 had to consider whether sub-cl (3) of Art 4. Indian Independence (Legal Proceedings) Order 1947 would bar the institution of a second suit with reference to the matters which had already been the subject-matter of a decree passed in a suit on the appointed day.

In that case, on the appointed day a decree had already been obtained before the Court of Munsif at Chandpur and subsequently another decree was obtained in respect of the same claim before the Sub Court Alipore wherein the Union of India raised an objection under S 47. C.P.C. that the execution cannot be proceeded with as the court had no jurisdiction to pass the decree S. 4 (3) of the order was interpreted as intended to prevent multiplicity of suits in different dominions over the same matter and it was in that view it was held that the holder of a decree referred to in sub-cl (3) of Art. 4 2 ill have to follow the ordinary remedies in execution and therefore, the entertaining of a second suit and passing of a decree therein would render the decree passed as one without jurisdiction. The provisions which the court had to interpret in that case are very different and have been constructed to bar the institution of a fresh suit in respect of the judgments, decrees and orders pending on the appointed day. As noticed earlier, there is no provision of the court and therefore, this decision cannot be applicable to the present case.

In Nachimuthi Chettiar v Moorthammal, (1977) 90 MLW 252, the effect of a sale held in contravention of S. 20 of Tamil Nadu Act 4 of 1938, had to be considered . In that case, during the pendency of an application under S. 20 of Tamil Nadu Act 4 of 1938, the court had proceeded to hold the sale and it was held that it was obligatory in such a situation that further proceedings should be stayed till the passing of orders on an application either made or to be made under S. 19 and that the sale held in violation of this provision has to be declared as void as infringing S. 20. It has earlier been seen how the petitioner is not entitled to have the benefit of stay under the provisions of the Act and in such an event he cannot complain that the court had chosen to proceed with the trial of the suit contrary to that. On the facts and the circumstances of the present case this decision will not have any application. Thus none of the decisions relied on by the learned counsel for the petitioner really assist to establish that the decree passed in O.S. 503 of 1977 is nullity.

15. For all the aforesaid reasons, the order of the court below rejecting the petition filed by the petitioner under Section 47, C.P.C. is upheld and the civil revision petition is dismissed with costs of the respondent.

16. Petition dismissed.


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