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Sm. Nandarani Bose and anr. Vs. Ranchhoddas Muldas Ramanuj and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1527 of 1979
Judge
Reported inAIR1981Cal275
ActsBengal Money Lenders Act, 1940 - Sections 2(22) and 36; ;Code of Civil Procedure (CPC) , 1908 - Sections 9, 21, 39, 42 and 47
AppellantSm. Nandarani Bose and anr.
RespondentRanchhoddas Muldas Ramanuj and anr.
Appellant AdvocateSwadesh Bhusan Bhunia and ;Harinarayan Mukherjee, Advs.
Respondent AdvocateSasthi Charan Roy, Adv.
DispositionRevision dismissed
Cases ReferredBahrein Petroleum Co. Ltd. v. P. J. Pappu
Excerpt:
- .....by the high court to the court of the learned subordinate judge for execution. this led to the money execution case no. 10/77 as aforesaid. 3. in this execution case the judgment-debtors-peiitioners filed an application described as one under section 36 of the bengal money lenders act though the grounds taken were - (i) that the decree is non est in the eye of law and is void and is a nullity and not at all executable; (ii) that the decree is the result of fraud practised upon the court; and (iii) assuming but not admitting that there is a valid decree, it is liable to be reopened under the provisions of the bengal money lenders act. they pleaded the decree to be nullity because, according to them, the high court in the original side had no territorial jurisdiction to entertain the.....
Judgment:

Anil K. Sen, J.

1. This Rule was obtained by the judgment-debtors-petitioners in Money Execution Case No. 10/77 and the order challenged is the order dated April 12, 1979, passed by the learned Subordinate Judge, 5th Court, Alipore.

2. The decree-holder opposite party instituted a money suit in the Original Side of this Court as against the present petitioners and the pro forma opposite party Badal Chandra Bose for recovery of his dues on promissory notes executed in his favour. In that suit the petitioners failed to avail of the conditional leave granted to them to defend the suit when they failed to furnish security as directed by the Court. There was an ex parte decree which was transferred by the High Court to the Court of the learned Subordinate Judge for execution. This led to the Money Execution Case No. 10/77 as aforesaid.

3. In this execution case the judgment-debtors-peiitioners filed an application described as one under Section 36 of the Bengal Money Lenders Act though the grounds taken were -

(i) that the decree is non est in the eye of law and is void and is a nullity and not at all executable;

(ii) that the decree is the result of fraud practised upon the Court; and

(iii) assuming but not admitting that there is a valid decree, it is liable to be reopened under the provisions of the Bengal Money Lenders Act.

They pleaded the decree to be nullity because, according to them, the High Court in the Original Side had no territorial jurisdiction to entertain the suit as the promissory notes were all executed beyond the said jurisdiction and no part of the cause of action arose within the said jurisdiction and also because the defendants were all residing beyond the said jurisdiction. Strangely, in this application they further pleaded the decree to be fraudulent on the ground that the promissory notes were all fabricated. The application was contested on behalf of the decree-holder opposite party who contested all the aforesaid objections raised as against the maintainability of the execution case itself.

4. At the hearing, as it now appears, it was submitted on behalf of the judgment-debtors-petitioners that their application should be treated not only as one under Section 36 of the Bengal Money Lenders Act but also under Section 47 of the Code of Civil Procedure and the learned Subordinate Judge treated the same as such. The learned Subordinate Judge, however, rejected the application on all its grounds by the order impugned. He overruled the prayer made under Section 36 of the Act on the view that he as the transferee court could have no jurisdiction to entertain the prayer proposed to be made under Section 36 of the Bengal Money Lenders Act. He referred to Section 36(6)(a) of the Act in holding that such an application can be entertained only by the Court which had passed the decree. So far as the objections under Section 47 of the Code are concerned, those were overruled by the learned Subordinate Judge on the view that the objection as to lack of territorial jurisdiction is not lack of inherent jurisdiction which could be pleaded at the stage of execution. So far as the objection as to the decree being the result of fraud is concerned, the learned Subordinate Judge held that such an objection again cannot be raised at the stage of execution. Reliance was placed by the learned Subordinate Judge on two decisions of the Supreme Court in the cases of Hira Lal v. Kali Nath, : [1962]2SCR747 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, : [1971]1SCR66 , both of which well support the view taken by the learned Subordinate Judge.

5. Mr. Bhunia appearing on behalf of the judgment-debtors petitioners has first.contended before us that the learned Subordinate Judge had erroneously failed to grant relief to the petitioners under Section 36 of the Bengal Money Lenders Act on the view that as a transferee court he could not entertain such an application. Reliance is placed by Mr. Bhunia on the provisions of Sections 39 and 42 of the Code of Civil Procedure in support of his contention, that, though a transferee court, the learned Subordinate Judge possessed all the powers of the Court which had passed the decree so that he could well entertain an application under Section 36 of the Bengal Money Lenders Act and grant the reliefs claimed thereunder. Reliance is also placed by Mr. Bhunia on Section 2(22) of the Bengal Money Lenders Act which defines the term 'suit to which this Act applies' to include a proceeding in execution. Relying upon this provision it has been contended by Mr. Bhunia that when relief under Section 36 of the Bengal Money Lenders Act can be claimed even at the stage of execution and when as the transferee court the learned Subordinate Judge is to exercise all the powers of the Court which had passed the decree, the learned Subordinate Judge could as well reopen the decree for giving relief under Section 36. With regard to the other aspect, Mr. Bhunia has contended that lack of territorial jurisdiction is as much a lack of inherent jurisdiction as in the case where the Court is otherwise incompetent to entertain the suit or the proceeding so that when the Court lacking territorial jurisdiction passes a decree, such a decree is a nullity and such an objection can well be raised even at the stage of execution. Reliance has been placed by Mr. Bhunia on a part of the observations of the Supreme Court in the case of Kiran Singh v. Chaman Paswan, : [1955]1SCR117 . in support of his proposition that lack of territorial jurisdiction renders the Court passing the decree wholly incompetent so that the decree passed by such a Court is inherently without jurisdiction and that it is always open to a judgment-debtor to raise such an objection even at the stage of execution.

6. Both the contentions thus raised by Mr. Bhunia have been contested by Mr. Roy who is appearing on behalf of the decree-holder opposite party. According to Mr. Roy, the learned Subordinate Judge was perfectly right in his conclusion that as a transferee court he had no authority or jurisdiction to entertain an application under Section 36 of the Bengal Money Lenders Act which, if allowed, would require the Court to pass a fresh decree. According to Mr. Roy again, the objections to the executability of the decree are wholly misconceived because neither of the objections so raised could be entertained by the Court executing the decree. Mr. Roy has strongly contested the contention of Mr. Bhunia that lack of territorial jurisdiction renders the decree passed to be a nullity as, according to Mr. Roy, such an objection in respect of lack of territorial jurisdiction can always be waived by the party-defendant and as such, must be deemed to have been so waived if at all this Court in its original jurisdiction had not the territorial jurisdiction to entertain the suit. Mr. Roy, however, pointed out that upon the plaint as filed in the Original Side this Court had the necessary territorial jurisdiction to entertain the suit and the objection proposed at the execution stage is a frivolous one intended entirely to delay the execution.

7. Having carefully considered the rival contentions put forward before us, we are of the opinion that we cannot uphold any of the contentions put forward by Mr. Bhunia. In our view, there is no real substance in either of the contentions put forward by Mr. Bhunia before us. We may agree with Mr. Bhunia that on the scheme of the provisions of the Bengal Money Lenders Act relief under Section 36 of the said Act can be granted even at the stage of execution if it otherwise fulfils the requirement of that provision and that this position follows from the definition clause as in Section 2(22) relied on by Mr. Bhunia. But even if we agree with Mr. Bhunia on this point, we cannot accept his further contention that the learned Subordinate Judge notwithstanding the position that he was a transferee court executing a decree, could entertain such an application under Section 36 of the Bengal Money Lenders Act and give relief thereunder. Sections 39 and 42 of the Code of Civil Procedure only lay down that the Court which had passed the decree, can transfer the decree to another Court for execution and, when so transferred, the executing court is vested with all the powers for the purpose of executing the same as if the decree had been passed by it. But the fact remains that the powers so vested are powers for the purpose of executing the decree and not to pass a fresh decree after reopening the decree under execution. On the scheme of Section 36 of the Bengal Money Lenders Act it is quite apparent that in order to give relief the Court has to reopen the original decree and then pass a fresh decree giving relief to the defendant in accordance with the provision of the said Act. We are, therefore, in agreement with the learned Subordinate Judge that in order to have jurisdiction to entertain an application under Section 36 the Court must necessarily possess otherwise the jurisdiction to pass a fresh decree after reopening the existing one. Such a power not being vested in the transferee court, the transferee court is not the forum contemplated by Section 36 for the purpose of entertaining and adjudicating a claim made under Section 36 of the Bengal Money Lenders Act. Though it has been suggested by Mr. Bhunia that taking of such a view may render Section 36 nugatory, in cases where the decree is being executed by a transferee court, we are unable to agree with Mr. Bhunia in this regard. In our view, notwithstanding the transfer, the Court, which had passed the decree, still retains the power and the jurisdiction to entertain an application under Section 36 of the Bengal Money Lenders Act if a case is made out thereunder in accordance with law. Such being the position, there is no question of the provision being rendered nugatory or the relief being denied to a judgment-debtor or against whom a decree is under execution in a transferee court. Though no earlier decision on the point either in favour or against the view taken by us could be cited at the Bar, we have come to the aforesaid conclusion of ours upon due consideration of the scheme of the Act and in particular, on consideration of the provision of Section 36 itself.

8. For the reasons as aforesaid, we overrule the first contention put forward by Mr. Bhunia before us.

9. Next we proceed to consider the second contention raised by Mr. Bhunia to the effect that the decree under execution being a nullity, such an objection could competently be raised by the judgment-debtor at the stage of execution. As we have indicated hereinbefore, assuming all that has been said by Mr. Bhunia to be well established, the case of the judgment-debtor is that this Court in its Original Side was lacking the necessary territorial jurisdiction to entertain the suit. The short question now before us, therefore, is if a Court not possessing the territorial jurisdiction has passed such a decree, does it result in the decree being totally a nullity According to Mr. Bhunia, it is so. Reliance was placed by Mr. Bhunia on the observation of the Supreme Court in the case of Kiran Singh v. Chaman Paswan, : [1955]1SCR117 where it had been observed 'It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, of whether it is in respect of the subject-mattec of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties'. Though reliance was placed by Mr. Bhunia on the aforesaid observation, his fallacy lies in the fact that he has read the observation bereft of what had been observed later and when he overlooked the real principle settled by the Supreme Court even in the aforesaid decision. Those observations, which have been relied on by Mr. Bhunia, are the observations as to the general principle. But the Supreme Court has gone on to point out that there are exceptions thereto and the exceptions have been embodied in Section 11 of the Suits Valuation Act and Section 21 of the Code of Civil Procedure. As a matter of fact, a similar objection raised in the case under consideration by the Supreme Court was held to be not sustainable in view of the provision of Section 11 of the Suits Valuation Act which incorporates principles analogous to Section 21 of the Code. It is unfortunate that Mr. Bhunia had not considered the other decisions of the Supreme Court deciding this point expressly including the two decisions relied on by the learned Subordinate Judge and the one in the case of Bahrein Petroleum Co. Ltd. v. P. J. Pappu, : (1966)IILLJ144SC . In the case reported in : [1962]2SCR747 (Hira Lal v. Kali Nath) the very objection, which is now being raised before us under similar circumstances, was held to be not entertainable by the executing court because it has been held that such an objection can always be waived by the defendant. In the case of Bahrein Petroleum Co. Ltd. v. P. J. Pappu, : (1966)IILLJ144SC , the Supreme Court pointed out 'As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. But Section 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the Courts under the Code may be waived under this section. The waiver under Section 21 is limited to objections in the appellate and revisional Courts. But Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Sections 15 to. 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it'. This observation, in our view, concludes the point as against Mr. Bhunia. Though it was sought to be suggested by Mr. Bhunia that Section 21 of the Code has no application to the Original Side, that, in our view, is of no consequence because, as has been pointed out by the Supreme Court, such waiver can be there independent of Section 21 and the same is well recognised by law.

10. Such being the position, we are unable to accept the contention of Mr. Bhunia that the objection as sought to be raised by the judgment-debtors petitioners as to the maintainability of the execution on the ground that the decree was passed by a Court lacking territorial jurisdiction to entertain the suit, was rightly overruled by the learned Subordinate Judge. We keep it on record that Mr. Bhunia has not pressed the other objection, namely, that the decree was the result of fraud. Obviously, he has not done so because the executing court is not the forum to raise such an objection in the manner proposed by the judgment-debtors petitioners.

11. For the reasons aforesaid, we overrule the second contention raised by Mr. Bhunia.

12. As both the contentions raised by Mr. Bhunia fail, the revisional application fails and is dismissed with costs, hearing fee being assessed at 5 (five) gold mohurs.

13. The Rule is discharged with costs as aforesaid.

B. C. Chakrabarti, J.

14. I agree.


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