High Court
Case Details
MC 2781/2008 B E F O R E HON’BLE MR. JUSTICE A.K.GOEL,THE CHIEF JUSTICE
Legal Reasoning
On 10.01.2013 following order was passed :- (cid:28)The issue raised in this petition is whether the executing Court could declare the decree to be nullity on the ground that the suit was barred by limitation wh en the decree had not been challenged by way of an appeal. The petitioner filed a suit for declaration of title which was decreed on 19.2.1 970 and, thereafter, the petitioner filed a suit for partition which was decreed on 7.4.1994. The petitioner, thereafter, filed an execution proceedings. The respondent judgment debtor filed an objection under Section 47 of the Code o f Civil Procedure stating that the second suit was barred by limitation. This ob jection has been upheld holding that the decree was inexecutable. I have heard learned counsel for the petitioner. Learned counsel for the petitioner submits that the executing court could not go behind the decree. Even the issue whether the suit was barred by limitation cou ld not be an issue in execution proceedings. Reliance has been placed on the jud gments of the Hon’ble Supreme Court in Topanmal Chhotamal -Vs.- M/s Kundomal Gan garam and others, AIR 1960 SC 388 and Kanwar Singh Saini -Vs.- High Court of Del hi, (2012) 4 SCC 307 in support of the submission that the executing court could not go behind the decree.
Legal Reasoning
Learned counsel for the respondents submits that if the suit was barred by limit ation, the plea of nullity can be raised. Reliance has been placed on the judgm ent of this High Court in Chandan Mall Bapna Vs. Abdul Gani Meah, AIR 1976 GAUHA TI 54(1) wherein decree was held to be nullity in compliance of the provisions o f the Assam Urban Areas Rent Control Act, 1956. Learned counsel for the respondents seeks further time to make his submission. On request, adjourned to 21st January, 2013. (cid:29) Learned counsel for the respondents fairly states that the decree could not be h eld to be nullity merely on the plea that the suit was barred by limitation. In this regard reference may also be made to the judgment of the Hon’ble Supreme Court in Ityavira Mathai v. Varkey Varkey, AIR 1964 SC 907. Therein it was obse rved that when question of limitation was not raised before the trial court or b efore the High Court, the same could not be raised for the first time before the executing Court as it was not a question of inherent lack of jurisdiction rende ring the decree to be nullity. Again the matter was considered in Vasudev Dhanji bhai Modi v. Rajabhai Abdul Rehman, (1971)1 SCR 66. It was held that the executi ng court cannot go into the question of correctness or otherwise of the decree i n law or on fact. It can only go into the question of decree being a nullity. Th e above view has been reiterated in Bhanwarlal Bhandari v. M/s Universal Heavy M echanical Lifting Enterprises, AIR 1999 SC 246 as follows : (cid:28) &.It is well settled that the executing court cannot go behind the decree unles s it is shown that it is passed by a court having inherent lack of jurisdiction, which would make it a nullity. In the case of Ittyavira Mathai v. Varkey Varkey , (1964) 1 SCR 495 : AIR 1964 SC 907 a Bench of four learned Judges of this Cou rt speaking through Mudholkar, J. observed that when the question of limitation was not raised before the trial court or before the High Court, it could not be raised for the first time before this Court even in the hierarchy of proceedings arising from the suit when such question of limitation raised before the Court was not a pure question of law but was a mixed question of law and fact. In the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman (1971) 1 SCR 66 : AIR 1 970 SC 1475 J.C. Shah, J. speaking for a three-Judge Bench of this Court made th e following pertinent observation in connection with the jurisdiction of the exe cuting court, when called upon to execute the decree and on the question as to u nder what circumstances the executing court can go behind the decree sought to b e executed. The observation at SCR p. 68 of the Report deserves to be extracted in extenso: (SCC pp. 672-73, paras 6-7) (cid:28)6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and can not entertain any objection that the decree was incorrect in law or on facts. Un til it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without br inging the legal representatives on the record of a person who was dead at the d ate of the decree, or against a ruling prince without a certificate, is sought t o be executed an objection in that behalf may be raised in a proceeding for exec ution. Again, when the decree is made by a court which has no inherent jurisdict ion to make it, objection as to its validity may be raised in an execution proce eding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at t he trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the de cree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri v . Rabindra Nath Chakravarti (AIR 1933 PC 61) the Judicial Committee held that wh ere a decree was passed upon an award made under the provisions of the Indian Ar bitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Ac t, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without juris diction. (cid:29) In view of above, the impugned order passed by the executing court cannot be sus tained. Accordingly, this petition is allowed, the impugned order is set aside and the e xecuting court is directed to proceed with the matter afresh in accordance with law. The parties may appear before the executing court for further proceedings on 08. 04.2013.