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Gosto Behari Pramanik Vs. Sm. Malati Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 505 of 1980
Judge
Reported inAIR1985Cal379,89CWN545
ActsCode of Civil Procedure (CPC) , 1908 - Section 21(2) - Order 23, Rule 3
AppellantGosto Behari Pramanik
RespondentSm. Malati Sen and ors.
Advocates:Asoke Kr. Banerjee, Adv.
Excerpt:
- .....reversing the order no. 9 dated 9th july, 1979 passed by the learned munsif, 6th court, alipore in title suit no. 283 of 1979.2. the opposite party no. 1 being the plaintiff instituted a suit being title suit no. 283 of 1979 in the court of munsif, 6th court at alipore, against the petitioner as also opposite parties nos. 2 to 4 for a declaration and for injunction, contending, inter alia, that the compromise decree in title suit no. 40 of 1971 and the proceedings in title execution case no. 75 of 1974 being fraudulent and fictitious were neither binding nor enforceable against the plaintiff, and the defendant no. 1, the petitioner herein, be restrained by permanent injunction from executing the said decree.3. the opposite party no. 1 also filed an application in the said suit for.....
Judgment:
ORDER

Prabir Kumar Majumdar, J.

1. This revisional application is at the instance of the defendant-petitioner and is directed against the order dated 9th November, 1979 passed by the learned Additional District Judge, 3rd Court, Alipore in Misc. Appeal No. 461 of 1979 reversing the Order No. 9 dated 9th July, 1979 passed by the learned Munsif, 6th Court, Alipore in Title Suit No. 283 of 1979.

2. The opposite party No. 1 being the plaintiff instituted a suit being Title Suit No. 283 of 1979 in the Court of Munsif, 6th Court at Alipore, against the petitioner as also opposite parties Nos. 2 to 4 for a declaration and for injunction, contending, inter alia, that the compromise decree in Title Suit No. 40 of 1971 and the proceedings in Title Execution Case No. 75 of 1974 being fraudulent and fictitious were neither binding nor enforceable against the plaintiff, and the defendant No. 1, the petitioner herein, be restrained by permanent injunction from executing the said decree.

3. The opposite party No. 1 also filed an application in the said suit for temporary injunction against the petitioner restraining the petitioner from executing the said compromise decree in the said Title Suit No. 40 of 1971. The case of the opposite party No. 1 in the said application was that the petitioner in collusion with the opposite party 2 and others entered into a compromise and as such the same was not binding on the opposite party 1. The opposite party 1 had further contended that she did not appear in the said Title Suit No. 40 of 1971 and had no knowledge of the said Title Execution Case No. 75 of 1974.

4. It appears that the defendant 1 (the petitioner herein) instituted a Title Suit No. 40 of 1971 against the defendants 2 to 4 and the plaintiff for ejectment from the suit property alleging that he had purchased the same from their predecessor. The defendants 2 and 4 and the plaintiff also instituted a Title Suit No. 230 of 1972 praying for reliefs under the Bengal Money Lenders Act alleging that their predecessor mortgaged the suit property to the defendant 1 (the petitioner herein) on taking a loan of Rs. 3000/- and he executed a kobala in favour of defendant 1 as a security for the loan for Rs. 6,000/-, that is, Rs. 3,0007-as principal, and Rs. 3,000/- as interest. The parties compromised both the suits by a single petition. In terms of the said compromise petition the defendant 1 (the petitioner herein) would get a decree for ejectment, but the same would not be executable if the defendant 2 paid Rs. 6,200/- to him by instalments. It also appears that defendant 2 did not pay the said amount of Rs. 6,200/- to the defendant 1, and therefore the defendant 1 put the decree for execution in Title Execution Case No. 75 of 1974.

5. The learned Munsif, 6th Court, Alipore by his Order No. 9 dated 9th July, 1979 rejected the plaintiff's application for injunction holding, inter alia, that it was evident from case record of the Title Suit No. 40 of 1971 that the plaintiff was the defendant 5 in the said suit and the summons was duly served on her which she had received on signing the acknowledgment receipt on 11-11-71. Thereafter, she entered appearance by filing vokalatnama. The said title suit was decreed on compromise on 26-6-74 and the compromise petition formed part of the decree. The lawyer of the plaintiff also signed the compromise petition and as such the plaintiff was a party to the said compromise decree. The learned Munsif further held that she was made pro forma defendant 4 in the Misc. Case No. 127 of 1976 arising out of Title Execution Case No. 75 of 1974, and she duly received notice of the said application.

6. The learned Munsif was of the view that the defendants 2 and 3 having failed to resist the execution of the decree set up the plaintiff to avoid the execution of the said decree. The learned Munsif rejected the said application for injunction filed by the Opposite Party 1 and directed her to deposit Rs. 6,200/-in Court to show her bona fide contention and on deposit of such sum the defendant 1 would not be allowed to withdraw the said sum of Rs. 6,200/- till the disposal of the plaintiffs suit challenging the said compromise decree, and further the execution proceedings would remain stayed till the disposal of the plaintiffs said suit.

7. The Opposite Party 1 being aggrieved by the said order of the learned Munsif preferred an appeal being Misc. Appeal No. 461 of 1979 before the Additional District Judge, 3rd Court at Alipore. The learned Additional District Judge after hearing the submissions of the parties allowed the appeal as also the application for injunction filed by the Opposite Party 1. The learned Additional District Judge held, inter alia, that the said compromise decree as recorded in the said Title Suit No. 40 of 1971 on the basis of a single petition compromising both the suits, namely, Title Suit No. 40 of 1971 and the Title Suit No. 230 of 1972 was without jurisdiction. The learned Judge arrived at such a conclusion on his finding that the said Title Suit No. 230 of 1972 being of the value of Rs. 6,000/- was beyond the pecuniary jurisdiction of the learned Munsif.

8. 1 have heard the submissions of Mr. Asoke Banerjee, learned Advocate appearing for the petitioner. No one appeared for the respondents. The vakalatnama on behalf of the Opposite Party 1 was duly filed, and by an order of this Court the service upon the other opposite parties was dispensed with.

9. It is submitted by Mr. Banerjee in support of the Rule that the learned lower appellate Court allowed the plaintiff's application for injunction on a total misconception of law, and as such the lower appellate Court acted illegally and with material irregularity in reversing the order of the learned Munsif. Mr. Banerjee submits that any objection as pecuniary jurisdiction can only be taken by the parties in the Court of first instance, and the appellate Court shall not allow or entertain any objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction. Mr. Banerjee also submits that the plaintiff sought for temporary injunction restraining the petitioner from executing the compromise decree in the Title Suit No. 40 of 1971 on the ground that she did not appear in the Title Suit No. 40 of 1971 nor had she any knowledge of said title execution case. It is the submission of Mr. Banerjee that the learned Munsif after thorough scrutiny of records came to a finding that she did appear in the said title suit and was a party to the compromise petition resulting in the said compromise decree, and further she had full knowledge of the said execution case. Mr. Banerjee points out that the learned lower appellate Court did not disturb or interfere with said finding of the learned Munsif, but allowed the appeal and the application on an entirely wrong basis not warranted by law.

10. In my opinion there is a good deal of substance in the aforesaid submissions of Mr. Banerjee. It may be noted that there is a difference between inherent lack of jurisdiction which goes to the very root of jurisdiction or competence of a Court to try a case and a mere lack of territorial or pecuniary jurisdiction. It is also well settled that objection as to such jurisdiction can be waived by a party or is capable of being cured by acquiescence. It was found as a fact that the opposite party No. 1 was a consenting party to the said compromise decree, and she admittedly did not raise and could not have raised objection as to the competence of the learned Munsif in passing or recording the said compromise decree.

11. The principle of waiver regarding territorial jurisdiction had statutory recognition in old Section 21, Civil P.C., and such recognition has now been extended to pecuniary jurisdiction as well by insertion of new Sub-section (2) to Section 21 by Amendment Act 104 of 1976. Even before such amendment it was held by different High Courts that pecuniary jurisdiction stood on the same footing as territorial jurisdiction. Therefore, want of territorial or pecuniary jurisdiction, if any, is an irregularity and does not make a decree a nullity. A decree based on compromise between the parties to a suit is not void or a nullity merely because it involves an amount which exceeds the pecuniary limits of jurisdiction of the Court that passed it.

12. It is well known that the consent or compromise decree can only be set aside in separate suit or proceedings on the ground that the consent was obtained by fraud or coercion, and such consent or compromise decree resulted in serious and substantial injustice.

13. Therefore, in my opinion, the learned appellate Court allowed the appeal and the application on an entire misconception of law. The learned Judge was entirely wrong in holding that the opposite party 1 had made out a strong prima facie case that the compromise decree was without jurisdiction 'as the learned Munsif had no pecuniary jurisdiction as aforesaid. In my opinion, in the case like this the only consideration for the Court is whether plaintiff was a party to the compromise decree or her consent, if any, was obtained under coercion. As found by the learned Munsif, in my view rightly, the plaintiff failed to establish her plea of ignorance of the compromise decree, and the defendants 2 and 3 set up the plaintiff to avoid the execution of the decree passed in the said title suit.

14. In my opinion, the learned Munsif in the facts and circumstances of the case, and for the ends of justice made the correct order as stated above. Assuming that on the facts found a different conclusion could have been made, even then the Court in the exercise of its revisional jurisdiction cannot and should not interfere with the order impugned on the ground that a different view could be taken on the facts found.

15. By the reason of the aforesaid, the order dated 9th November, 1979 passed by the Additional District Judge, 3rd Court at Alipore is set aside, and the Order No. 9 dated 9th July, 1979 passed by the learned Munsif, 6th Court, Alipore in the Title Suit No. 283 of 1979 is restored.

16. This application succeeds. The Rule is made absolute. There will be no order as to costs.


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