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Rashbehari Das and ors. Vs. Mahindi Pal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal565,173Ind.Cas.634
AppellantRashbehari Das and ors.
RespondentMahindi Pal and anr.
Cases ReferredGora Chand Haldar v. Prafulla Kumar Roy
Excerpt:
- .....which it (the court) has no local jurisdiction; and (3) section 21, civil p.c., saved the consent decree passed in this case from attack at the execution stage. he accordingly allowed the appeal and ordered execution to proceed by his order dated 3rd march 1936. it is against this order that the present appeal has been filed.5. mr. ghosh appearing for the respondents raises a preliminary objection as to the competency of the appeal. he urges two grounds in support thereof: (1) that the order appealed from is virtually an appellate order refusing review; and (2) that the order cannot come under section 47 as the appellants by their own case have taken up the position that they are not the representatives of the judgment-debtor nitai. he says on the authority of ishan chandra v. beni.....
Judgment:

R.C. Mitter, J.

1. The facts necessary for deciding the preliminary objection raised on behalf of the respondents as well as for deciding the appeal on the merits may be stated as follows. One Netai Roy executed a mortgage in favour of the respondents, the Pals, in 1922. The property mortgaged was about 15 bighas of land in mouza Bhedua. In the bond the said properties were described as being within Thana and Sub-Registry Vishnu-pore in the district of Bankura. In 1926 the Pals sued on their mortgage. The suit was filed in the first Court of the Munsif at Vishnupore (Mortgage Suit No. 152 of 1926). It is admitted that thana Vishnu-pore was, and is within the territorial jurisdiction of the said Court. It is also admitted that the plaint filed contained the statement that the mortgaged properties were situate within the local limits of the first Court of the Munsif of Vishnu, pore. The defendant, Nitai Roy, appeared in the suit and raised no question about the place of suing. The suit terminated in a consent decree on 31st August 1926. To the decree (Ex. W) is attached a schedule of the mortgage properties which describes them as situate within police station and Sub-Registry Vishnupore. On the face of the proceedings of the said mortgage suit, and if no other evidence de hors the said suit be looked into, it would appear that the first Court of the Munsif of Vishnupore had territorial jurisdiction.

2. In 1927 the Pals applied for execution of the decree in the first Court of the Munsif at Vishnupore (Title Execution No. 754 of 1927). The judgment-debtor raised the objection that the decree was a nullity, as according to him all the mortgaged properties were situate within the jurisdiction not of the Munsif of Vishnupore but of Bankura (sadar). The Court how ever did not give effect to this large objection but ordered only the properties within its jurisdiction to be sold. It did not specify which of the properties were within its jurisdiction and which were not, but the order was passed in a general and vague form. The Nazir of his Court put all the mortgaged properties to sale which were purchased by the decree-holders. Their troubles begin from here. They, in the meantime, objected to the order of the learned Munsif which had directed the exclusion of such of the properties as were beyond his jurisdiction from the sale to be held by his Nazir and ultimately carried the matter in appeal to this Court (Appeal from Appellate Order No. 339 of 1927). This Court held that although the Court which had passed a mortgage decree had jurisdiction to sell properties included in the mortgage decree situate beyond its local limits, the decree-holders in this case would however acquire no title by their purchase of such of the properties as were beyond the local limits of the Vishnupore Court as the order of that Court had excluded them from the sale proclamation. After this judgment, which was pronounced on 19th July 1928, the respondents (decree-holders purchasers) commenced a suit for possession in 1930 (Title Suit No. 98 of 1930 of the Court of the Subordinate Judge, Bankura). In that suit the question of fact as to whether the mortgage properties were situate in thana Vishnupore or within thana Onda, within the jurisdiction of the Munsif at Bankura (sadar), was gone into. The Court found that all the mortgage properties were situate at the date of the mortgage suit (No. 152 of 1936) within the jurisdiction of the Munsif of Bankura and not of Vishnupore. On this finding the suit was dismissed by the trial Court and that decree was maintained by this Court by its judgment dated 24th January 1934 passed in Second Appeal No. 1193 of 1933. This Court held that the sale passed no title to the decree-holders purchasers, but at the same time observed that the said decision would not prevent them from taking whatever steps they may be entitled to take to bring these properties to sale in execution of the mortgage decree, if they can satisfy the Court before which they bring their claim that the mortgage decree was valid. It is this finding that the mortgage properties are in thana Onda within the jurisdiction of the Sadar, and the evidence led on behalf of the judgment-debtor on this point in the suit of 1930, and which was also given in these proceedings that have furnished the ground of objection of the appellants to the execution proceedings started on 2nd May 1934.

3. The course of these proceedings was as follows: The decree-holders applied in the first Court of the Munsif at Vishnupore for transfer of the decree to Bankura (sadar) with a certificate of non-satisfaction. The appellants, who are transferees for the mortgagor after the mortgage decree, were made parties to this application. On 23rd August 1934 the order asked for was made. The appellants appeared at the Munsif's Court at Bankura when the application for execution was made after the decree had been transferred as aforesaid. On 23rd February 1935 they applied there for stay of execution in order to enable them to raise in the Vishnupore Court their objection that the decree being according to them a nullity cannot be executed. On the stay being granted for a limited period they made their application to the Munsif at Vishnupore on 30th March 1935. The application was headed as one under Section 47, Section 151 and 0. 47, Rule 1 of the Code. In this application the whole history of the litigation is set out in great detail. The main prayer is for review of the order of transmission of the decree dated 23rd August 1934, but the Court was also invited to hold that the decree was void and executable as it was passed by a Court which had no territorial jurisdiction over the subject matter. The learned Munsif, by his judgment dated 30th November 1935, held that the application for review was not barred by time and that the decree was a nullity being passed by a Court which had no territorial jurisdiction over the subject matter. In repelling one of the contentions of the decree-holders, he held that the appellants before us were not the representatives of the judgment-debtor, Nitai Roy, for though they had purchased the mortgaged properties, the mortgage itself was invalid, having been registered at a place where no part of the mortgaged properties were situate. This has furnished one of the grounds for the preliminary objection raised by the respondents to the competency of the appeal before us. On appeal however this judgment of the Munsif was reversed by the learned Subordinate Judge by his judgment dated 26th March 1936.

4. The learned Subordinate Judge held that the appellant's application, regarded as an application for review, was not maintainable, being hopelessly out of time. He however held that the application could also be treated as an objection under Section 47, Civil P.C. After remarking that the appellants had taken an inconsistent position, by saying in effect that they were not the representatives of the judgment-debtor, he came to the conclusion: (1) that as the decree also declared the personal liability of Nitai Roy who was a resident of Vishnupur, it cannot be stated to be wholly void; (2; that consent may give jurisdiction to try a suit over which it (the Court) has no local jurisdiction; and (3) Section 21, Civil P.C., saved the consent decree passed in this case from attack at the execution stage. He accordingly allowed the appeal and ordered execution to proceed by his order dated 3rd March 1936. It is against this order that the present appeal has been filed.

5. Mr. Ghosh appearing for the respondents raises a preliminary objection as to the competency of the appeal. He urges two grounds in support thereof: (1) that the order appealed from is virtually an appellate order refusing review; and (2) that the order cannot come under Section 47 as the appellants by their own case have taken up the position that they are not the representatives of the judgment-debtor Nitai. He says on the authority of Ishan Chandra v. Beni Madhav (1897) 24 Cal 62 that a purchaser from the judgment-debtor is the latter's representative only if he is affected by the decree, and as the case of the appellants is that the mortgage is invalid as having been registered at Vishnupore, and the decree in the mortgage suit void, they on their showing are not affected by the mortgage and the decrees, and so cannot be taken as representatives of the judgment-debtor Nitai Roy. We cannot accept the preliminary objection. The learned Subordinate Judge has held that the application of the appellants cannot be entertained if regarded as an application for review, but he treated it as an objection under Section 47, an objection to the execution on the ground that the decree was void. The appellant's contention that the mortgage was invalid was in our judgment rightly overruled on the ground that it was no longer open, as a decree on the mortgage had already been passed and they the appellants would be affected by the decree if their challenge to its validity on the ground of jurisdiction fails. We accordingly hold that the order passed by the learned Subordinate Judge comes within the purview of Section 47 of the Code and the appeal preferred against it is competent. On the merits however we hold that the said order is correct, though not for the reasons given by the learned Subordinate Judge.

6. The broad principle is that the executing Court cannot go behind the decree, but must execute it as it is. There was a divergence of opinion on the point as to whether this rule was an absolute one or subject to an exception, the exception being where the decree itself was challenged on the ground that it was without jurisdiction. So far as this Court is concerned, it settled the conflict by a decision of the Full Bench in Gora Chand Haldar v. Prafulla Kumar Roy AIR 1926 Cal 907. No doubt this decision was not accepted as correct by a Full Bench of the Rangoon High Court (Nathan v. Sampson AIR 1931 Rang 252) and by the Lahore High Court in Ghulam Mahmed v. Mt. Fazal Nishan AIR 1932 Lah 289, and a doubt cast upon it by Costello, J. sitting singly in Kali Charan Singha v. Bibhuti Bhusan Singha : AIR1933Cal85 , but ultimately the decision of the Full Bench of this Court was, in effect, generally approved by the Judicial Committee of the Privy Council in Jananendra Mohan v. Rabindra Nath , where the defect however was not want of territorial jurisdiction in the Court which passed the decree. The broad question that the executing Court cannot entertain a question which relates to the validity of the decree on account of defect of jurisdiction in the Court which passed it, accordingly can no longer be raised in any Court in India, but the decision of the Judicial Committee does not settle the question when the decree was obtained in a suit filed in a wrong place.

7. The ground being cleared up, it is now necessary to examine the reasons given by the Subordinate Judge in the light of the decision of the Full Bench in Gora Chand's case? The suit on which the consent decree in the case before us was passed was a suit to enforce the mortgage. The respondents did not want a decree on the personal liability of Nitai Roy arising out of his promise to repay the loan. They did not waive the security or reserve their rights on the security for a future suit but wanted to enforce it in that suit. The fact that Nitai lived within the jurisdiction of the Vishnupur Court did not accordingly confer any jurisdiction to that Court. The jurisdiction to try the suit was solely dependent on the situs of the mortgaged properties, and if the properties were not situate in thana Vishnupur, the Vishnupur Court had no jurisdiction whatsoever. We cannot accordingly accept the first ground on which the learned Subordinate Judge has proceeded. But the second and the third grounds given by the learned Subordinate Judge, which really go together, require closer examination, and if the matter had been res integra we would have upheld the same,, but in our judgment the matter is concluded by the Full Bench decision in Gora Chand Haldar v. Prafulla Kumar Roy AIR 1926 Cal 907.

8. The first principle is that consent can-not confer jurisdiction on a Court whera there is none. Four factors generally,' each independent in itself, determine jurisdiction, namely situs or the subject matter of the suit, its value, the residence of the defendant and the nature of the suit. Section 21, Civil P. C, deals with the place of suing and Section 11, Suits Valuation Act, with the valuation of the suit. These sections enact that if no objection is taken as to the place of suing or the over or under valuation of the subject matter at the first opportunity, such objection would not be entertained in appeal or revision, that is at a later phase of the suit. These sections do not in terms apply when the question of jurisdiction based on those grounds is raised either at the execution stage or in a separate suit instituted for a declaration that a decree passed was void. On this question as to whether an objection that the decree passed was void on those grounds can be raised in execution proceedings or in a separate suit when no such objection was raised in the suit at the first opportunity, there has been a divergence of judicial opinion. One view is that such a question can be raised. This view proceeds upon the principle that the terms of Section 21 of the Code or Section 11, Suits Valuation Act, 'cannot be so interpreted as to have a wider application than what is justified by its terms,' these provisions to be strictly construed being exceptions to the well-established general principle that where the Court has no jurisdiction over the subject matter, its decree is a nullity, even though the parties had consented to the exercise of jurisdiction by it: Kunja Mohan v. Monindra AIR 1923 Cal 619, Raghubir Saran v. Hori Lal : AIR1931All454 and Subramanya v. Swaminatha : AIR1928Mad746 , per Ramesam, J. The other view is that such questions cannot be so raised. This view proceeds upon the principle that the said sections enact a statutory waiver for all times and the two reasons given in support of this view are, (a) that

the ordinary way of questioning a decree passed without jurisdiction is on appeal or on revision, and if this is forbidden, a Court of first instance cannot in execution do that which the appellate or revisional Court is precluded from doing; [vide Zemindar of Ettiapuram v. Chidambaram Chetty AIR 1920 Mad 1019];

9. (b) that the object of Section 21 of the Code and Section 11, Suits Valuation Act, would be frustrated if the parties are allowed to raise question in regard to the place of trial or the valuation of the suit with regard to the same subject matter by simply changing the form of proceeding: Zemindar of Ettiapuram v. Chidambaram Chetty AIR 1920 Mad 1019, Jagtaram Kuer v. Mt. Mundar AIR 1934 Pat 240, Parshottam Das Nathu Ram v. Radha Kishan AIR 1929 Lah 449 and Subramanya v. Swaminatha : AIR1928Mad746 , per Devadass J. The Allahabad High Court seems to have drawn a distinction between the case where the question is raised in execution proceedings and where it is raised in a separate suit: Raghubir Saran v. Hori Lal : AIR1931All454 . The distinction does not seem to us to be based on a broad foundation but may possibly be justified on the principle that execution proceedings are really proceedings in the suit: Thakur Prosad v. Fakirulla (1895) 17 All 106 and Brojendra Kishore v. Shamser Ali : AIR1937Cal259 .

10. In Gora Chand Haldar v. Prafulla Kumar Roy AIR 1926 Cal 907 however, which was not a case of want of territorial jurisdiction simply, the jurisdiction of the civil Court in relation to that class of suits being expressly barred by statute, the Full Bench assumed for its decision that there was want of territorial jurisdiction only, and held that the decree being void for that reason could be challenged in execution. It may be that Section 21 of the Code was not considered in its judgments, but the decision is there and binding on us. It is for this reason, and this reason alone, that we cannot give effect to the second and third grounds given by the learned Subordinate Judge, although we see the force of his reasons. In Gora Chand Haldar v. Prafulla Kumar Roy AIR 1926 Cal 907, however, the decision was given in the following, terms by, J.:

I think it may be said that the correct view,, and the view for which there is a strong current of authority is that where the decree presented for execution was made by a Court which apparently had no jurisdiction whether pecuniary or territorial, or in respect of the judgment-debtor's person, 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 authorized to question the validity of the decree.

11. The word 'apparently' used in this passage was much criticised in the Rangoon Full Bench case, Nathan v. Sampson AIR 1931 Rang 252, but it has been explained by Mukherjee and Guha, JJ. thus in Amala Bala v. Sarat Kumari : AIR1932Cal380 :

The word 'apparently' used in connection with the proposition laid down by this Court is a word which must always be kept carefully in view. What the proposition means is that the executing Court would be competent to refuse to execute the decree only when on the face of the decree it would appear that the Court which passed it had no jurisdiction. When we say the decree we mean the decree and the papers relevant for the purpose of understanding it. The proposition does not mean that, if there is a clear statement upon the plaint which gives the Court jurisdiction to entertain a suit, and if upon the basis of that jurisdiction the decree is passed by the Court without there being a challenge by the defendant as regards the territorial jurisdiction of the Court to pass the decree, it remains open to the defendant to question the jurisdiction of the Court after the decree has been mads and in the course of execution.

12. See also Kali Charan Singha v. Bibhuti Bhusan Singha : AIR1933Cal85 .

13. In the case before us the defect of territorial jurisdiction does not appear on the face of the proceedings of Mortgage Suit No. 152 of 1926 of the first Court of the Munsif at Vishnupur, and it is on this interpretation of the decision of the Full Bench in Gora Chand Haldar v. Prafulla Kumar Roy AIR 1926 Cal 907 that we up hold the order of the lower appellate Court. The appeal is accordingly dismissed with costs, hearing fee being assessed at two gold mohurs.

S.K. Ghose, J.

14. I agree.


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