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Dwijendra Mohan Shaha and ors. Vs. Lalit Mohan Shaha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in110Ind.Cas.510
AppellantDwijendra Mohan Shaha and ors.
RespondentLalit Mohan Shaha and ors.
Cases ReferredGora Chand Haldar v. Profulla Kumar Roy
Excerpt:
execution of decree - executing court's power to question legality of decree. - .....jurisdiction. there he was clearly wrong. the decree may be erroneous in the opinion of the learned judge, but that cannot make it a decree without jurisdiction and a nullity as the court bad pecuniary jurisdistion and territorial jurisdiction over the case and it is not said that any of the parties was a minor unrepresented by a guardian ad litem or a lunaric without a committee. the learned judge has clearly misapprehended the full bench case which he reeites in his judgment reported as gora chand haldar v. profulla kumar roy : air1925cal907 . there it was clearly laid down that the executing court can only refuse to execute a decree which was a nullity as passed without jurisdiction either territorial or pecuniary or with reference to the persons bgfore it. otherwise it is.....
Judgment:

This appeal must be allowed. The Additional District Judge on appeal has held that the decree was incapable of execution as it was a nullity having been passed without jurisdiction. There he was clearly wrong. The decree may be erroneous in the opinion of the learned Judge, but that cannot make it a decree without jurisdiction and a nullity as the Court bad pecuniary jurisdistion and territorial jurisdiction over the case and it is not said that any of the parties was a minor unrepresented by a guardian ad litem or a lunaric without a committee. The learned Judge has clearly misapprehended the Full Bench case which he reeites in his judgment reported as Gora Chand Haldar v. Profulla Kumar Roy : AIR1925Cal907 . There it was clearly laid down that the Executing Court can only refuse to execute a decree which was a nullity as passed without jurisdiction either territorial or pecuniary or with reference to the persons bgfore it. Otherwise it is quite clear that an Executing Court cannot refuse to execute any decree. It has no jurisdiction to question the legality or correctness of the decree which is sought for execution.

The judgment and order of the Additional District Judge must, therefore, be set aside aud that of the Subordinate Judge restored with costs in this Court as well as in the lower Appellate Court. The first Court will proceed to execute the decree according to law.

We assess the hearing fee at five gold mohurs.


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