Andhra HC (Pre-Telangana)
Kakatiya Finance, Nalgonda vs Nalamala Lingaiah on 12 March, 1998
Equivalent citations: 1998(4)ALD297, 1998(4)ALT251, 1998 A I H C 4260, (1998) 2 LS 40, (1998) 4 ANDHLD 297, (1998) 2 APLJ 340, (1998) 4 ANDH LT 251, (1999) 1 CIVLJ 384
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
JUDGMENT
1. Heard both the Counsel. 2. This C.R.P. arises on the execution
side. The petitioner is the decree-holder in O.S.No.227/1993 on the file of the District Munsif, Nalgonda. It is submitted that the petitioner filed a suit for recovery of Rs.10,493/-against the defendant basing on promissory note. The suit was decreed ex parts on 29-6-1994. The respondent filed an application to set aside the exparte decree in IANo.582/95, but the same was dismissed. Later, the first respondent preferred I.A.No.533/1995 in the suit under Section 47 C.P.C. on the ground that the decree should be set aside as the claim of the petitioner is barred by limitation.
3. The learned Counsel for the respondent submits that the sole ground set up before the executing Court was that the suit claim was barred by limitation.
4. The lower Court after considering the arguments adduced by both the sides held that the decree in O.S.No.227/93 is illegal, void ab initio and cannot be executed on the ground that the claim of the petitioner in the suit was barred by limitation and allowed the I.A. and dismissed the E.P.No.72/95.
5. The only point for consideration is whether the executing Court can go behind the decree.
6. The learned Counsel for the petitioner relies on the judgment in Jogi Nageswaramma v. Jogi SivaRao, 1991 (l)APLJ 172,wherein it was held as under :
"Executing Court cannot go beyond the decree. The proper course is to file a separate suit for cancellation of the maintenance decree."
7. He also relies on a judgment of Full Bench of Kerala High Court in K.P. Antony v. Thandiyode Plantations (Pvt.) Ltd, (FB), wherein their Lordships have held as under:
"C.P.C. (5 of 1908), Section47 -Execution - Challenge as to judgment on ground of lack of jurisdiction-Not tenable." "It will not be open to a party to challenge a judgment when it is sought to be enforced on the ground that the judgment is based on wrong conclusions or on erroneous findings or on wrong application of law. As the remedy of the aggrieved party in such cases is to challenge the same in appeal or revision as the case may be and not to challenge it, when it is sought to be enforced, the respondents challenge in this case against the judgment cannot be sustained."
8. Relying on the above judgment, the learned Counsel for the petitioner submits that the executing Court has committed an error in going into the merits of the suit, which,, has no jurisdiction.
9. Learned Counsel for the petitioner mainly relics on a Three-Judge-Bench Judgment of the Apex Court in Bhavan Vaja v. Solanki Hanuji Khodaji Mansang, wherein their Lordships in para 19 of the Judgment have held as under:
"It is true that an executing Court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading into the decree. In order to find out the meaning of the words employed in a decree, the Court often has to ascertain the circumstances under which these words came to be used. That is the plain duty of the executing Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution Court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the feet that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate Court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing Court and the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They have merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them."
10. The above judgment is not applicable to the fact of the present case. The judgment referred to above is with regard to consistency in effect of the decree that has been passed. Their Lordships have considered in appropriate cases, the Court has to find out the true effect of the decree and for construing a decree it can and in appropriate cases consider the pleadings, but here in the instant case it is different.
11. An earlier Judgment of the Apex Court consisting of Four Judges (Larger Bench) in Kiran Singh v. Charnan Paswan, AIR 1954 SC 340 wherein their Lordships in para 6 of the Judgment have held as under:
"It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.''
12. Relying on the Judgment of Four-Judge-Bench (Larger Bench) of the Apex Court in Kiran Singh v. Chaman Paswam (supra), I hold that the lower Court could not have gone into the merits and reappreciatcd the facts and come to a different conclusion when the said decree has already become final and which is not without jurisdiction as such, it has committed an error in exercise of its jurisdiction with material irregularity.
13. Accordingly, the C.R.P. is allowed.
No costs.