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Gora Chand Haldar and anr. Vs. Prafulla Kumar Roy and ors. - Court Judgment

LegalCrystal Citation
Subject Property; Civil
CourtKolkata
Decided On
Reported inAIR1925Cal907
AppellantGora Chand Haldar and anr.
RespondentPrafulla Kumar Roy and ors.
Cases Referred and Kali Pada v. Hari Mohan
Excerpt:
- .....authorities it has been held that an execution court can only execute a valid decree, and a void decree ought to be disregarded without any formal proceedings to set it aside. the same view has been taken in other high courts. imdatt ali v. jugan lal [1895] 17 all. 478, hazi musa v. purmanand [1890] 15 bom. 216 and m. subramania v. vaithnatha [1918] 38 mad. 682.4. as it is a matter of general importance and the view taken by this court in the cases of biswanath v. bhagwandin [1911] 14 c.l.j. 648 and kali pada v. hari mohan [1916] 44 cal. 627 is not only in conflict with that accepted by the other high courts but also with the decisions in other cases of this court to which we have referred, we are of opinion that the present state of the authorities being embarrassing to the lower.....
Judgment:
ORDER

1. This appeal is directed against an order of the Subordinate Judge of Birbhum holding the decree sought to be executed by the Appellant incapable of execution and dismissing his application for execution. In 1910 Appellant obtained the mortgage decree which he is now seeking to execute in the Court of the Subordinate Judge of Birbhum in respect of properties, some of which were in the District of Birbhum and some in the Santhal Parganas. In this execution case the judgment-debtors have taken exception to the execution on the ground that when the decree was passed, some of the mortgaged properties situated in the Santhal Parganas were under settlement, and so under Section 2 of Act 37 of 1855 the Birbhum Court had no jurisdiction to pass the decree; the decree having thus been passed without jurisdiction is void and incapable of execution. The Court below has found that one of the Santhal Parganas properties Mouzah Mouloti was under settlement when the decree was passed and held, under the provisions of the Act above referred to and on the authority of the decision of the Judicial Committee of the Privy Council in Maha Prasad Singh v. Ramani Mohan Singh A.I.R. 1914 P.C. 140, that the Birbhum Court had no jurisdiction to try the suit and pass the decree which is accordingly void and incapable of execution. In this view the learned Subordinate Judge has dismissed the execution case. The finding of fact recorded by the Court below has not been disputed before us by the Appellant but the order of the Court below has been assailed on two grounds:-(1) that the Court below as executing Court could not go behind the decree and test its validity but was bound to execute it even though it was passed without jurisdiction; (2) that the Court below is wrong in holding that the whole decree was bad and it should have executed so much of it as was valid in respect of the Birbhum properties.

2. The second contention may be shortly disposed of as untenable in view of the decision of the Judicial Committee in Maha Prasad Singh v. Ramani Mohan Singh A.I.R. 1914 P.C. 140.

3. On the first point there is no unanimity of opinion and we find it difficult to reconcile some of the decisions of this Court In Roopnarain Singh v. Ramajee Singh [1878] 3 C.L.R. 192 and Narendra Bahadur v. Gopal Shah [1912] 17 C.L.J. 634, the objection that the decree was void and incapable of execution was permitted to be raised and allowed in the execution of the decree. A contrary view was taken in Biswanath Prosad Mahata v. Bhagwandin Pandey [1911] 14 C.L.J. 648 and in Kali Pada Sarkar v. Hari Mohan Dalal [1916] 44 Cal. 627, where it has been laid down that an execution Court cannot question the validity of the decree and refuse execution though the decree was a nullity and passed without jurisdiction. In Kunja Mohan Chakravarti v. Manindra Chandra Rai Chaudhuri A.I.R. 1928 Cal. 619, Mookerjee, J., who was a party to the decisions in Biswanath v. Bhagwandin [1911] 14 C.L.J. 648 and Kali Pada v. Hari Mohan [1916] 44 Cal. 627, enunciates the proposition of law that when a decree is void and a nullity it is not only the duty of the Court which passed it to ignore it but of every Court to which it is presented. Though the case in which this observation was made did not arise in execution, it is wide enough to cover a case like the present and is in conflict with the view expressed by the same learned Judge in the two previous cases above cited. This question has been recently considered by a Full Bench of the Patna High Court in Junglee Lal v. Laddu Ram [1919] 4 P.L.J. 240, where as a review of the conflicting authorities it has been held that an execution Court can only execute a valid decree, and a void decree ought to be disregarded without any formal proceedings to set it aside. The same view has been taken in other High Courts. Imdatt Ali v. Jugan Lal [1895] 17 All. 478, Hazi Musa v. Purmanand [1890] 15 Bom. 216 and M. Subramania v. Vaithnatha [1918] 38 Mad. 682.

4. As it is a matter of general importance and the view taken by this Court in the cases of Biswanath v. Bhagwandin [1911] 14 C.L.J. 648 and Kali Pada v. Hari Mohan [1916] 44 Cal. 627 is not only in conflict with that accepted by the other High Courts but also with the decisions in other cases of this Court to which we have referred, we are of opinion that the present state of the authorities being embarrassing to the lower Courts the law on the point should be settled by a Full Bench.

5. We accordingly submits the following question for the decision of the Full Bench:

Where a decree having been passed by a Court having no jurisdiction to pass it is void and a nullity, is the execution Court competent to question its validity and refuse to execute it? As the point has arisen in a second appeal the whole case is submitted to the Full Bench for decision.

Walmsley, J.

6. This Reference is made in a first appeal from an order. The necessary facts are given in the Order of Reference and need not be repeated.

7. The question propounded is in these words: 'Where a decree, having been passed by a Court having no jurisdiction to pass it, is void, and a nullity, is the execution Court competent to question its validity and refuse to execute it?'

8. The learned Judges who made the Reference are satisfied that the decree under consideration was made by a Court that had no jurisdiction to make it, and that in consequence it is void and a nullity. It is not open to us therefore to consider any of the questions involved in those findings. We have to start by accepting the proposition that the Court that made the decree had no jurisdiction to make it, and by that expression is meant that the Court had not such territorial jurisdiction as would authorize it to make the decree, and not that having jurisdiction it exercised it erroneously. This distinction is of great importance, for with all respect I venture to think that the apparent conflict in reported cases is largely due to failure to keep this distinction clearly in view. It would be tedious to examine the numerous decisions, in detail, and it would not lead to any useful result. I think, it may be said that the correct view, and the view for which there is a strong cur-rent of authority, is that where the 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; within these narrow limits, I think that the executing Court is authorised to question the validity of a decree.

9. As the question arises in a first appeal, we must return the case for final adjudication by the Bench which referred it, with the statement that our answer to the question propounded is in the affirmative.

C.C. Ghose, J.

10. I agree.

Suhrawardy, J.

11. I agree.

B.B. Ghose, J.

12. I agree.

Duval, J.

13. I agree.


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