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2024 (1) TMI 1553
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....rected the Executing Court to proceed with the execution of the decree whilst treating such objection as non-maintainable. 3. The revisional order dated 21st February, 2009 was challenged by the respondents 1 to 3 in an application under Article 227 of the Constitution [Civil Misc. Writ Petition No. 15236 of 2009] before the High Court of Judicature at Allahabad ("High Court", hereafter). The High Court, by its judgment and order dated 4th February, 2011, quashed the order passed by the Revisional Court and relegated the parties to the remedy of having their rights, in respect of the suit property, adjudicated by the appropriate forum. 4. This appeal, by special leave, registers a challenge to the said judgment and order of the High Court. Factual Conspectus 5. Having regard to the nature and extent of controversy raised at the stage of execution, a decision on this appeal does not necessitate noting the facts triggering it and the rival contentions in great depth; however, we propose to briefly narrate the essential facts and submissions advanced by learned counsel for the parties before recording our conclusions. 6. The relevant facts, shorn of unnecessary details, ar....
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....he had only a life interest in the property, after her demise, the same devolved upon him exclusively. f. It is to be noted that no written statement was filed on behalf of the other two defendants. g. Upon the appellants moving an application under Rules 5 and 10 of Order VIII, CPC for pronouncement of judgment against Samiullah, the same was allowed by the Trial Court by its order dated 5th August, 1991 [The decree was signed on 11th November, 1991.], to which we propose to advert in course of our analysis. h. Subsequently, the Trial Court, on 10th October, 1991, framed 11 (eleven) issues for consideration in the Suit, of which the very first one was on its competency to try the Suit. i. Kazmi passed away on 15th July, 1995, after which his sons, Samiullah and Fariduddin [respondents 4 and 5 herein] transferred the suit property to the respondents 1 to 3 ("Purchasers", hereafter) vide a sale deed dated 3rd November, 1997. The Suit against Kazmi remained pending even after his demise, and none of his other heirs or legal representatives were brought on record as substituted defendants. The Suit against Kazmi was finally dismissed as abated on 27....
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....ullity. The High Court was also of the opinion that the revisional order dated 21st February, 2009 deserved to be set aside and the writ petition allowed, which it duly ordered. The parties were granted liberty to take recourse to available legal remedies to have determination of the title to the suit property adjudicated. Certain salient observations made by the High Court in the impugned judgment are summarised below for convenience: a. The order dated 5th August 1991, passed by the Trial Court, in the Suit, restrained only the defendant no.2 from interfering with the peaceful enjoyment of the appellants' rights relating to the suit property, but did not restrict the sons of Kazmi from dealing with or transferring the same. b. The transfer of the suit property was not in derogation of section 52 of the Transfer of Property Act, 1882 ("ToP Act", hereafter) and that the Purchasers could object to the appellants' execution application. c. It is a cardinal principle that to succeed in a suit for permanent prohibitory injunction, the plaintiff must either establish title, proprietary rights over the suit property or prove possession over the same; however, t....
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....the Trial Court. The decisions in Surjit Singh and Others v. Harbans Singh and Others [(1995) 6 SCC 50] and Manohar Lal v. Ugrasen [(2010) 11 SCC 557] were referred to in support of the contentions that the transfer of property during pendency of proceedings and also in contravention of the interim order of injunction was impermissible. e. Further, the Purchasers forcibly dispossessed the appellants of their peaceful possession of the suit property on 10th October, 2004 in gross violation of the injunction order dated 16th January, 1998 passed by the Executing Court. f. Reliance placed by the High Court on Balraj Taneja v. Sunil Madan [(1999) 8 SCC 396] was misplaced in the present case as this Court, in Balraj Taneja (supra), while holding that reasons must be given while decreeing a suit under Rule 10 of Order VIII, CPC, was seized of a matter where the decree was challenged in appellate proceedings. In the present case, the decree was sought to be declared inexecutable in execution proceedings, far beyond the reach of such a narrow jurisdiction. 10. Ms. Preetika Dwivedi, learned counsel for the Purchasers (respondents 1 to 3) in support of upholding of the i....
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.... 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up." 15. We have no hesitation to hold that Rule 10 is permissive in nature, enabling the trial court to exercise, in a given case, either of the two alternatives open to it. Notwithstanding the alternative of proceeding to pronounce a judgment, the court still has an option not to pronounce judgment and to make such order in relation to the suit it considers fit. The verb 'shall' in Rule 10 [although substituted for the verb 'may' by the Amendment Act of 1976] does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a written statement is invited fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which 'shall' equally applies would be rendered otiose. 16. At this stage, we consider it apposite to take a quick look at Balraj Taneja (supra) to examine the s....
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....tatement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja (supra) also lays down the law that provision of Rule 10 of Order VIII, CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement. 18. If indeed, in a given case, the defendant defaults in filing written statement and the first alternative were the only course to be adopted, it would tantamount to a plaintiff being altogether relieved of its obligation to prove his case to the satisfaction of the court. Generally, in order to be entitled to a judgment in his favour, what is required of a plaintiff is to prove his pleaded case by adducing evidence. Rule 10, in fact, has to be read together with Rule 5 of Order VIII and the position seems to be clear that a trial court, at its discretion, may require any fact, treated as admitted, to be so proved otherwise than by such admission. Similar is the position with section 58 of the Indian Evidence Act, 1....
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....ent case, Kazmi had indeed filed his written statement dealing with the appellants' plaint before the order dated 5th August, 1991 was made. There, not only had Kazmi denied the assertions made in the plaint but he had also specifically objected to the maintainability of the suit itself before the Trial Court on the ground noted above. The Trial Court is presumed to be aware of the fact that the written statement of Kazmi was on record or else it would not have fixed the next date for settling 'issues'. In a situation where maintainability of the suit was in question and despite Samiullah not having filed his written statement, it was not a case where the Trial Court could simply pronounce judgment without even recording a satisfaction that it had the jurisdiction to try the suit and adjudicate the contentious issue(s), not to speak of pronouncing its verdict against Samiullah without assigning a single reason by treating the averments in the plaint to be admitted. The High Court rightly observed that even on pronouncement of judgment against Samiullah, the lis remained alive as against Kazmi and decision on the objection as to maintainability could have resulted in a contrary deci....
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....ee [(1969) 1 SCC 709]. A money suit instituted by the respondent before this Court was tried by the High Court at Calcutta and after taking evidence the learned Single Judge on 17th August, 1962, passed the following order: "There will be a decree for Rs 15,000 with interest on judgment on Rs 15,000 at 6% per annum and costs. No interim interest allowed." Pursuant to that order a decree was drawn up. An appeal carried from the decree before the Division Bench failed. The Division Bench assigned sketchy reasons for the conclusion that the Trial Court "rightly decreed the suit" and disposed of the appeal with certain modification of the decree. While allowing the appeal and setting aside the decree passed by the high court and remanding the suit to the Court of first instance for trial according to law, this Court noted that Rules 1 to 8 of Order XX, CPC are, by the express provision contained in Rule 3(5) of Order XLIX, CPC inapplicable to a Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction and hence, a judge of a Chartered High Court was not obliged to record reasons in a judgment strictly according to the provisions conta....
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....ellate jurisdiction by the High Court but a judgment approving an order on an objection under section 47, CPC, scope wherefor is limited. 25. Our real task is to ascertain whether the decree drawn up on the basis of the order dated 5th August, 1991 and put to execution by the appellants could have been objected to by the respondents 1 to 3 as inexecutable under section 47, CPC. Section 47, CPC, being one of the most important provisions relating to execution of decrees, mandates that an executing court shall determine all questions arising between the parties to the suit or their representatives in relation to the execution, discharge, or satisfaction of the decree and that such questions may not be adjudicated in a separate suit. 26. Reference to a couple of authorities on the scope and nature of section 47, CPC, at this stage, would not be inapt. 27. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman [(1970) 1 SCC 670], this Court was considering the scope of objection under section 47 of the CPC in relation to the executability of a decree. Therein, it was laid down that only such a decree could be the subject-matter of objection which is a nullity and not a decree whi....
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....tion of law as noticed above and bearing in mind that the powers of an executing court, though narrower than an appellate or revisional court, can be exercised to dismiss an execution application if the decree put to execution is unmistakably found to suffer from an inherent lack of jurisdiction of the court that made the same rendering it a nullity in the eye of law. 30. For reasons more than one, we propose to hold that the Executing Court and the High Court were right in holding that the objection raised by the respondents 1 to 3 to the executability of the decree was well-founded. 31. What appears to be of significance in the light of the decisions referred to above is the importance of the legal term 'jurisdiction', and the question whether the Trial Court did have the jurisdiction to pass the order it did on 5th August, 1991 followed by the decree signed on 11th November, 1991. 32. What does 'jurisdiction' mean? In the ensuing discussion, we feel inclined to draw guidance from certain decisions of ancient vintage which have stood the test of time. 33. The wisdom of Sir Ashutosh Mukherjee, A.C.J., speaking for a Full Bench of the High Court at Calcutta in Hirday Na....
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....istence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has sometimes led to confusion. ... We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing as well as a determination. A judgment pronounced by a Court without jurisdiction is void, subject to the well-known reservation that when the jurisdiction of a Court is challenged, the Court is competent to determine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it. *** Besides the cases mentioned therein, reference may particularly be made to the judgment of Srinivas Aiyangar, J., in Tuljaram v. Gopala [32 Mad. L.J. 434; 21 Mad. L.J. 220 (1916).], where the true rule was stated to be that if a Court has jurisdiction to try a suit and has authority to pass orders of a particular kind, the fact that it has passed an order which it should not have made in the circumstances of that litigation, does not indicate total want or loss of jurisdiction so as to render the order a nullity." (under....
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....; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail. 7. Two things must be clearly borne in mind. Firstly, 'the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be 'a nullity' and 'void' but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results." (Administrative Law, Wade and Forsyth, 8th Edn., 2000, p. 308.) ... 8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is mere....
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....o contends on that basis that interim relief should not to be granted, grant of relief in whatever form, if at all, ought to be preceded by formation and recording of at least a prima facie satisfaction that the suit is maintainable or that it is not barred by law. Such a satisfaction resting on appreciation of the averments in the plaint, the application for interim relief and the written objection thereto, as well as the relevant law that is cited in support of the objection, would be a part of the court's reasoning of a prima facie case having been set up for interim relief, that the balance of convenience is in favour of the grant and non-grant would cause irreparable harm and prejudice. It would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Rule 2 of Order XIV, CPC. That could amount to an improper exercise of power. If the court is of the opinion at the stage of hearing the application for interim relief that the suit is barred by law or is otherwise not maintain....
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.... being rendered on an illegal and erroneous assumption of jurisdiction and, thus, be assailable as lacking in inherent jurisdiction and be treated as a nullity in the eye of law; as a logical corollary, the order dated 5th August, 1991 is held to be ab initio void and the decree drawn up based thereon is inexecutable. 42. There is one other reason which we wish to assign as a ground for upholding the order of the Executing Court and the High Court. 43. Reference may once again be made to Balram Taneja (supra) where the law has been reiterated succinctly, as follows: "41. There is yet another infirmity in the case which relates to the 'judgment' passed by the Single Judge and upheld by the Division Bench. 42. 'Judgment' as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4(2) which says that a judgment 'shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision'. It should be a self-contained document from which it should appear as to what were ....
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....low a "judgment" in a case where the court invokes power upon failure of a defendant to file its written statement. It is, therefore, only a "judgment" conforming to the provisions of the CPC that could lead to a "decree" being drawn up. As is manifest on the face of the record of the present case, apart from the ipse dixit of the Trial Court that the case is fit for being proceeded against under Rule 10 of Order VIII and that the suit qua Samiullah ought to be decreed with the injunctive order, no ingredients that a "judgment" should contain as per the CPC appear in the order dated 5th August, 1991. 46. We deem it fit to advert to the fine words of wisdom imparted to us by Hon'ble P.B. Mukharji, CJ., in 'The New Jurisprudence: The Grammar of Modern Law' where the learned author says: "The supreme requirement of a good judgment is reason. Judgment is of value on the strength of its reason. The weight of a judgment, its binding character or its persuasive character depends on the presentation and articulation of reason. Reason, therefore, is the soul and spirit of a good judgment." 47. It is one of the cardinal principles of the justice delivery system that any verdic....