Skip to content


Kayem Biswas Vs. Bahadur Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal1258
AppellantKayem Biswas
RespondentBahadur Khan and ors.
Cases Referred and Prosonno v. Baidya
Excerpt:
- .....being, as to whether the decree in the former suit comprises excess land, which did not form the subject matter of the suit, is a question which can only be gone into by the execution court under section 47 of the code of civil procedure and a fresh suit did not lie. secondly, it was contended that, inasmuch as the plaintiffs sought to set aside the former decree on the ground of fraud, they could only succeed on proving fraud, and in the absence of such finding the merits of the case could not be gone into in the second suit. in regard to the first point objection is taken on behalf of the respondents that this question was not raised in the court of appeal below, and that it ought therefore not to be allowed to be argued here for the first time. we think, however, that we are bound.....
Judgment:

1. This appeal is against the judgment and decree of the Additional District Judge of Khulna, reversing a decision of the Munsif of the Additional Court at Khulna and remanding the case for fresh decision in accordance with certain instructions given in the judgment of the lower appellate Court.

2. The Defendant No. 1, Kayem Biswas now appellant, brought a suit in the year 1915 against the plaintiffs-respondents for recovery of possession of certain lands on establishment of title; and obtained an ex-parte decree. The plaintiffs then filed the present suit to set aside the sale decree as fraudulent and without jurisdiction, and for a confirmation of their title to the land, and for other consequential reliefs. A number of issues were framed upon the pleadings, one of which, No. 8, was in the following terms:

Is the decree in Title Suit No. 343 of 1915 fraudulent and without jurisdiction as alleged? Is it liable to be set aside

3. The Munsif found upon this issue that no fraud had been established, and that there was no substance in the objection as to jurisdict on. He accordingly, in view of his findings on this issue and on Issues 9 and 11, dismissed the suit.

4. On appeal the learned Additional Disrict Judge, without going into the question of fraud, or coming to any finding thereon, held that the decree was without jurisdiction, inasmuch as the claim was for 5 bigbas odd; whereas the decree was for 12 bighas 15 cattas. He, there-fore set aside the decree and remanded the case for fresh decision in the manner indicated above. The defendants thereupon filed this second appeal.

5. A preliminary objection has been taken on behalf of the respondents to the hearing of the appeal, the argument being that there are only two provisions in the Code of Civil Procedure relating to remand viz., Rules 23 and 25 of Order 41, and that as the present case does not come under either, no appeal lies. It is clear that the order was not made under Order 41, Rule 25. It is urged, however, on behalf of the appellant that in form and substance the order, though it may have been irregular, must be held to have been made under Rule 23 of Order 41 and that, that being so, an appeal lies, This view is supported by authority, see Taritbasini v. Basumati [1920] 31 C.L.J. 354 and Prosonno v. Baidya-Nath [1920] 31 C.L.J 360, and we think, following those decisions, that we must hold, that the appeal is competent.

6. On the merits two points have been urged before us on behalf of the appellants. Firstly, it is urged that having regard to the findings of the lower appellate Count and the admitted facts in the Court of first; instance the question, which arises being, as to whether the decree in the former suit comprises excess land, which did not form the subject matter of the suit, is a question which can only be gone into by the execution Court under Section 47 of the Code of Civil Procedure and a fresh suit did not lie. Secondly, it was contended that, inasmuch as the plaintiffs sought to set aside the former decree on the ground of fraud, they could only succeed on proving fraud, and in the absence of such finding the merits of the case could not be gone into in the second suit. In regard to the first point objection is taken on behalf of the respondents that this question was not raised in the Court of appeal below, and that it ought therefore not to be allowed to be argued here for the first time. We think, however, that we are bound to take notice of the argument. It appears to us too to be well founded. Section 47, Civil Procedure Code, lays down that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.'

7. The main object underlying this section is to prevent multiplicity of suits and to secure that all matters, which can be decided in the suit, shall be so decided. The question which then arises is whether the matter arising in this particular instance was one which ought to be determined by the executing Court and not by separate suit. Mow, the kernel of the matter, according to the lower appellate Court, was that the decree was for land in excess of that which formed the subject of the suit and that it included land, which ought not to have been included. It seems to us that these are matters for determination by the Court executing the decree and that looked at from that point of view the subsequent suit was bad.

8. Coming to the second point it is to be observed that the main contention in the present suit was that the decree had been obtained by fraud. The trial Court came to a definite finding that fraud had not been established. That finding has not been displaced in the judgment of the lower appellate Court Indeed, the learned Judge has not gone into the question of fraud at all. The finding of the first Court upon this point. must, therefore, stand, and in the absence of any such finding in the Court of appeal below, we do not think it was open to the learned Judge to go into the merits of the case. The learned Judge, without entering into the question of fraud, held that the decree had been passed without jurisdiction and upon this ground held that it should be created as a nullity and set aside. We do not see how the decree can be regarded as having been made without jurisdiction. The word 'jurisdiction' may be used in two senses, viz., in the sense of jurisdiction over the subject-matter of the litigation, or in the sense of power to make the order. Jurisdiction certainly does not fail here in the former sense, as the Court clearly had territorial jurisdiction over the land in suit, nor has this apparently ever been disputed. It seems to follow therefore that jurisdiction must have been held by the learned Judge to be defective in the other sense, viz., that the trial Court had no power to make the decree as drawn up. In this connexion the learned Additional District Judge has observed as follows:

Now jurisdiction of a Court in a particular suit is confined to the subject-matter of litigation as specified or set forth in the plaint. No Court can by its decree go beyond that subject-matter so as to affect matters outside, or matters not included therein; nor has any Court power to give a plaintiff more than, what ho claims, or to give him one thing when he claims a different thing, altogether in his suit.

9. The question is, were the plaintiffs in the original suit given a decree for some-thing different from what they asked for? What they asked for was for about 6 bighas of land within certain defined limits. The decree apparently gave them about 5 bighas (vide opening sentences of the judgment of the trial Court); and if the area so decreed included any land, which did not form the subject of the suit, that was a matter for the determination of the Court executing the decree, and could not form the subject-matter of a separate suit.

10. For the reasons stated, we think, that the decision of the lower appellate Court cannot be supposed. The appeal must accordingly be allowed with costs of both Courts; the decree of the Court of appeal below set aside, and the judgments and decree of this Munsif restored.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //