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Rabindra Nath Chakravarthi Vs. Jnanendra, Mohan Bhaduri and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1932Cal9
AppellantRabindra Nath Chakravarthi
RespondentJnanendra, Mohan Bhaduri and ors.
Cases ReferredGanendra Mohan Bhaduri v. Bhavani Charan Chakravarti
Excerpt:
- .....judges were emphasizing the distinction between the absolute lack of what may be said to be the inherent jurisdiction of a court and the irregular or illegal exercise of that jurisdiction. this distinction has been clearly pointed out in several decisions of this court, amongst which may be referred the cases of ashutosh sikdar v. bihare lal kirtania [1908] 35 cal. 61 hirday nath dey v. ram chandra a.i.r. 1921 cal. 34 and ishan chandra banikya v. moomraj khan a.i.r. 1926 cal. 1101. the limits prescribed in gorachand's case : air1925cal907 would, in the case of a court of general jurisdiction, exclude all but cases of absolute lack of inherent jurisdiction. there may however be cases where the court is not a court of general jurisdiction or where being a court of general jurisdiction.....
Judgment:

1. This is an appeal by a decree-bolder from an order upholding the judgment-debtors' objection under Section 47, Civil P.C., and dismissing the application for execution. The Court below has held that; the decree sought to be executed was passed without jurisdiction and was therefore a nullity.

2. Disputes having arisen over the provisions of a will left by one Rajendra Lal Goswami, which was proved on 19th December 1917, there was an arbitration . held by the late Mr. B. Chakravarti under the Arbitration Act, and Mr. Chakravarti made his award on 29th July 1918. On the award being filed there were two petitions filed by the parties before the Court, the original side of the High Court, containing certain terms of settlement amongst themselves, in accordance with which the parties wanted the award to be varied. The learned Judge sitting on the original side thereupon made a decree in which it was declared that ' the said award as modified by the terms of settlement ought to be carried into effect,' and he ' ordered and decreed accordingly.'

3. This is the decree which forms the subject-matter of the present execution.

4. The decree-holder is one Rabindra Nath Chakravarti who at the date of the decree was an infant under the age of 18 years but has now attained majority. The contesting judgment-debtors are Jnanendra Mohan Bhaduri and Girindra Mohan Bhaduri who were executors to the will and beneficiaries under it, and also parties to the award and the decree. In the case of Jnanendra Mohan Bhaduri v. Sm. Annopurna Devi A.I.R. 1957 Cal. 562 which also arose from the same decree, it has been pointed out that when an award is made under the Arbitration Act, the Court, after satisfying itself as to its validity, will order it to be filed and execution can be taken on it as though it were a decree, but the Court can pronounce no judgment on it and make no decree. The question therefore which arises at the outset is whether the executing Court is competent to go behind the decree and question its validity. Connected with this question is the question as to what is the true character of the decree; in other words, is the decree a nullity?

5. In the Full Bench decision of this Court in the case of Gora Chand Haldar v. Profulla Kumar Boy : AIR1925Cal907 it was pointed out that the correct view to take of the aforesaid question was to hold that where a decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction; and that within these narrow limits, the executing Court is authorized to question the validity of the decree, in laying down the limits as aforesaid the learned Judges were emphasizing the distinction between the absolute lack of what may be said to be the inherent jurisdiction of a Court and the irregular or illegal exercise of that jurisdiction. This distinction has been clearly pointed out in several decisions of this Court, amongst which may be referred the cases of Ashutosh Sikdar v. Bihare Lal Kirtania [1908] 35 Cal. 61 Hirday Nath Dey v. Ram Chandra A.I.R. 1921 Cal. 34 and Ishan Chandra Banikya v. Moomraj Khan A.I.R. 1926 Cal. 1101. The limits prescribed in Gorachand's case : AIR1925Cal907 would, in the case of a Court of general jurisdiction, exclude all but cases of absolute lack of inherent jurisdiction. There may however be cases where the Court is not a Court of general jurisdiction or where being a Court of general jurisdiction is limited to special purposes only.

6. In those cases also it may be rightly said that the Court has no inherent jurisdiction over a particular cause though it has jurisdiction, pecuniary, territorial as well as over the parties, or that the jurisdiction of the Court is limited in a particular way. A decree passed in excess of the limits prescribed may also be regarded as void on the ground of lack of inherent jurisdiction, If a decree for money is passed against an infant in a guardianship matter, or if a foreclosure decree is made on an application for probate--though such things will hardly ever come to pass--it would be an instance of the former kind of lack of inherent jurisdiction. Similarly once a cause is converted into a matter under the Arbitration Act, the inherent jurisdiction which the Court of general jurisdiction possessed over it is curtailed and the Court retains only a limited jurisdiction only for the purposes of supervision and control over the proceedings of the arbitration, e.g., of appointing an arbitrator, umpire or third arbitrator; of enlarging the line for an award; of remitting the award or of setting it aside, and so on; and it is this limited jurisdiction only that it exercises so long as the matter remains as one under the said Act. It has no jurisdiction to treat the cause as a suit pending before it, as one on which it can pass a judgment or make a decree. In this view it may not unreasonably be held that the decree under execution was not the result of a mere irregular or illegal exorcise of the Court's jurisdiction in the shape of the adoption of a wrong procedure, but was one made in excess of the inherent jurisdiction of the Court. The executing Court, in our judgment was competent to treat the decree as a nullity, and in doing so was well within the spirit of the Full Bench decision in Gora Chand's case : AIR1925Cal907 referred to above.

7. Treating the decree as a nullity, the question arises as to whether the decree-holder is entitled to proceed with the execution as on the award. It appears that in the case of another decree-holder against the same executors, execution as upon the award has been permitted by this Court: see Ganendra Mohan Bhaduri v. Bhavani Charan Chakravarti : AIR1930Cal468 . The decree being merely a superimposition, unnecessary and void, and the award being under Section 15 of the Act enforceable as a decree, and having been referred to in the petition for execution itself, the application may, in substance, be regarded as an application for execution of the award. The facts have to be investigated a little further in order to decide whether this should be permitted.

8. The provisions in respect of which execution has bean applied for are said in the application for execution to be contained in paras. 6 and 10 of the award. Connected therewith is a further provision contained in Clause (5) of the terms of settlement which are annexure, Schedule B, to the decree. The decree being void the said provision cannot be executed as a provision contained in a decree, but on the other hand may be pleaded as an agreement in bar of the execution. The prayers in the execution petition were for delivery of possession of certain immovable properties and a life policy and documents relating to the said properties, for adjustment of accounts by appointment of a Commissioner and for enforcement of such delivery and rendering of accounts by arrest of the judgment-debtors if necessary. It was also prayed that leave might be reserved to the decree-holder for fresh execution for the purpose of realization of the money which would be found due on the taking of accounts. Now, para, 6 of the award directed the executors and executrix to make over to Bhawani Charan Chakravarti the father and natural guardian of Rabindra Nath Chakravarti who was then a minor, or such other guardian as might be appointed for him by the Court the properties in Schedule Ga attached to the award together with all accounts from the date of the testator's death until the date when the accounts are rendered, and also the documents and papers relating to the said properties, subject to certain reservations. Similar directions were also given in that paragraph with regard to the life policy. There are directions in that paragraph as well as in para. 10 of the award as to how the accounts were to be adjusted and the liabilities of the executors were to be ascertained. In para. 6 it was further provided that Bhawani Charan Chakravarti or any other guardian whom the Court might appoint would make over the properties with proper accounts to Rabindra Nath Chakravarti on the latter attaining majority. The directions therefore were substantially for delivery of the said properties and accounts to Rabindra Nath Chakravarti and such delivery was to be taken on his behalf, because of his minority by his father and natural guardian Bhawani Charan Chakravarti or by the person, if any, who might be appointed as his guardian by the Court. We did not see why, on attaining majority, Rabindra Nath Chakravati should not be entitled to have what the award directed for his benefit, provided of course that the directions have not been already carried out. As regards the provision contained in Clause (5), of the Terms of Settlement mentioned above that the properties in Schedule Ga as directed in para. 6 of the award were to be made over to Bhawani Charan Chakravarti, the father and natural guardian of Rabindra Nath Chakravarti on his giving security for Rs. 12,000, we do not see how this agreement can stand in the way of the decree-holder if in point of fact the properties have not been so made over.

9. The result is that, in our opinion the view taken by the Court below is not correct. We accordingly allow the appeal and setting aside the order appealed from direct that the execution petition be entertained as an application for execution of the award and that the proceedings be allowed to be carried on and be dealt with on their merits. The appellant will be entitled to his costs in the appeal, hearing fee being assessed at five gold mohurs.


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