Madras High Court
Meharunnisha Beevi vs Mohammed Jackaria on 29 January, 2010
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE :29.01.2010 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRP(NPD).No.3068 of 2008 and M.P.No.1 of 2008 Meharunnisha Beevi .. Petitioner Vs. Mohammed Jackaria ..Respondent Prayer :- This Revision petition has been filed against the order dated 30.06.2008 made in E.A.No.37/2008 in E.P.No.48 of 2007 in O.S.No.115/1999 on the file of the learned Subordinate Judge, Udhagamandalam under Sec.47 of C.P.Code. For Petitioner : Mr.S.V.Jayaraman Senior Counsel for Mr.J.Franklin For Respondent : Mr.T.P.Manoharan ORDER
This Revision is directed against the fair and decreetal order passed by the learned Subordinate Judge, Udhagamandalam in E.A.No.37/2008 in E.P.No.48 of 2007 in O.S.No.115/1999. The petitioner/ judgment debtor before the lower court is the petitioner herein and the respondent/decree holder is the respondent in this revision.
2. The brief facts which are necessary for the disposal of the revision would be as follows:
The petitioner who was a judgment debtor in O.S.No.115/1999 dated 18.10.2004, had preferred an appeal in A.S.No.6/2005 before the learned District Judge, Nilgiris at Udhagamandalam, and the said appeal was dismissed by the said court confirming the judgment and decree passed by the lower court and the said suit was originally filed by the respondent as plaintiff for specific performance of the agreement said to have been entered into between the respondent and the petitioner for selling the property belonging to the petitioner for consideration mentioned there in and for return of money in alternative to the plaintiff and the said suit was decreed for alternative relief of return of money by the plaintiff disallowing the claim of specific performance. The First Appellate court had also confirmed the said judgment and decree and had rejected the specific performance as asked for by the respondent as plaintiff. While coming to the conclusion that the respondent plaintiff was not entitled to specific performance and decree it has been categorically found that by there was no privity of contract in between petitioner/judgment debtor and the respondent decree holder. The trial court had not considered the plea of the petitioner that a sum of Rs.2,50,000/- was borrowed by the petitioner/judgment debtor from one Anwar for the purpose of her daughter's marrige in the year 1999 and the said Anwar obtained signatures in blank papers and thereafter set up his brother the respondent (plaintiff) as agreement holder and created agreement of sale in respect of the suit property.
3. However the partial decree was passed in favour of the respondent/plaintiff who is a stranger to the actual transaction which would be void-ab-initio. Therefore, the said decree cannot be enforced by the the decree holder against the petitioner.
4. Learned District Judge had also confirmed the judgment and decree of the lower court on the appeal preferred by the plaintiff. No second appeal was preferred by the respondent/decree holder against the said decision. In view of the reason that the trial court had not discussed the plea of the petitioner as aforesaid and the appellate court had also confirmed the said judgment and decree as such the decree passed against the petitioner in favour of the respondent/plaintiff is itself void-ab-initio and inexecutable and therefore the execution petition filed in E.P.No.48/2007 filed for the recovery of the said money cannot also be proceeded and therefore, the execution petition has to be dismissed as the decree passed in O.S.No.115/1999 dated 18.10.2004 as confirmed in appeal A.S.No.6/2005 on the file of Learned District Judge, Nilgiris at Udhagamandalam is void-ab-initio and in executable and thus render justice.
5. The respondent contended that the plea of the petitioner/defendant in the said suit was that she borrowed a sum of Rs.2,50,000/- and she has not repaid the same to the said Anwar and she did not say that she had discharged the said amount and the alleged transaction was alien to the suit transaction and therefore, the lower court had not considered the said plea and the trial court and the first appellate court had categorically found that a sum of Rs.2,50,000/- had been passed on the basis of the suit agreement and the plaintiff was not entitled to specific performance and therefore he was found entitled to damages by the way of return of the said advance amount with other benefits like interest and costs. The respondent did not prefer any second appeal against the said judgment. Equally the petitioner/judgment debtor did not also prefer any appeal or cross appeal against the judgment and decree of the trial court and therefore the said judgment and decree passed by the trial court became final. Since the petitioner is also one of the parties to the said proceedings he is bound by the judgment and decree passed by the trial court and the first appellate court. The execution court cannot go beyond the decree passed by the trial court. The execution court has to execute the decree passed by the trial court. The petition has been has been filed by the petitioner judgment debtor in order to prolong the proceedings as far as possible. Therefore the said petition may be dismissed since it does not carry any merits.
6. The lower court had considered the case of both sides after permitting both parties to adduce oral and documentary evidence. Accordingly the petitioner/judgment debtor was examined as P.W.1 and Ex.P.1 to Ex.P.6 were marked on the side of the judgment debtor. No evidence is adduced on the side of the respondent/decree holder.
7. The lower court had considered the evidence adduced and the arguments advanced on either side and had come to the conclusion of dismissing the petition filed by the petitioner/judgment debtor.
8. Aggrieved by the said decision, the present revision has been preferred by the petitioner/judgment debtor.
9. Heard Mr.S.V.Jayaraman Senior Counsel for Mr.J. Franklin the learned counsel for the revision petitioner and Mr.T.P.Manoharan, learned counsel for the respondent/decree holder.
10. The point for consideration before this court would be whether the fair and decreetal order passed by the lower court in dismissing the petition filed by the petitioner/judgment debtor under Sec.47 C.P.C is legal and if not whether it is liable to be interfered and set aside?
11. The learned Senior counsel Mr.S.V.Jayaraman would argue for the petitioner that the trial court did not consider the plea raised by the petitioner that she did not receive the sum of Rs.2,50,000/- from the respondent/plaintiff but she had received the said sum of Rs.2,50,000/- for the purpose of celebrating the marriage of her daughter from one Anwar and the petitioner/judgment debtor was compelled to put her signature in various blank papers with Anwar and he in turn had utilised the signed papers for fabricating the suit agreement as if the sale agreement was executed by the petitioner/judgment debtor in favour of respondent/plaintiff who is the brother of the said Anwar. He would further submit that the trial court had found that there was no privity of contract in between plaintiff and the defendant. However, the borrowal of Rs.2,50,000/- has been found true and therefore it had ordered refund of the said amount. He would submit that the said order cannot be a valid order passed by the trial court in view of Section 22(2) of the Specific Relief Act. Therefore, the petitioner claimed that the decree passed by the trial court is void-ab-initio. He would also submit that the first appellate court had also affirmed the mistake committed by the trial court on the appeal preferred by the decree holder and also confirmed the decree and judgment which should not validate the decree passed by the lower court from its voidness. Therefore, the petition has been filed by the petitioner/judgment debtor to declare the judgment and decree passed by the lower court are inexecutable due to its voidness and to dismiss the execution petition by the respondent/decree holder against the revision petitioner.
12. Learned counsel for the respondent/decree holder would submit in his argument that the pleas raised by both parties were considered by the trial court and it was found that the plaintiff was not entitled to the main relief and he was only entitled to an alternative relief of refund by way of damages to the tune of Rs.2,50,000/- with subsequent interest. The said finding of the trial court was questioned by the respondent/decree holder debtor in A.S.No.6/2005 before in the learned District Judge at Nilgiris at Udhagamandalam and the said judgment and decree of the lower court were confirmed by the said appellate court and consequently the appeal preferred by the respondent/decree holder was dismissed. He would further submit that the revision petitioner did not even question the judgment and decree of the trial court or even attempted to file cross appeal in the appeal filed by the respondent/decree holder.
13. Therefore, he would submit in his argument that the judgment debtor cannot go beyond the decree but is bound by the decree as it cannot be held to be a void decree. He would draw the attention of the court to the judgment of Hon'ble Apex court reported in 2004 (1) SCC 287 in between Rafique Bibi (Dead) by Lrs. vs. Sayed Waliuddin (dead) by Lrs and Others in support of his case.
14. Relying upon the said judgment he would submit in his argument that the decree cannot be said to be nullity when it is passed by a competent court having inherent administration and the merely presence of the errors in passing the decree cannot make itself a nullity. He would also submit that the decree can be called nullity if it ultravires power of the court which passes the decree. Therefore, he would submit in his argument that the lower court was right in holding that the decree sought to be declared as null and void and inexecutable were not null and void confirmed by both courts below and they would bind the petitioner/judgment debtor. Therefore he would request the court that the order of the lower court need not be interfered as the said finding is a valid one. He would also request the court to dismiss the revision as not maintainable.
15. I have given anxious thoughts to the arguments advanced by the respondent/plaintiff and had also gone through the. The main objection raised by the petitioner/judgment debtor would be that the trial court had come to a wrong conclusion of passing a decree for refund of the amount said to have been borrowed by the petitioner/defendant from the respondent/plaintiff when it is found that there was no privity of contract. No doubt it could be a contradictional or mistaken finding reached by the trial court. The entire case was very much considered in the appeal in A.S.No.6/2005 preferred by the respondent/decree holder before the Learned District Judge, Nilgiris at Udhagamandalam and the same was accepted and the judgment and decree of the trial court were confirmed in the said appeal. It is also not in dispute that the petitioner did not prefer any appeal against the judgment and decree if the trial court nor tend to file any cross appeal in the appeal preferred by respondent/decree holder before the 1st appellate court. There is no dispute for the proposition that in disposal of the appeal the decree of the appellate court would form part of the decree of the trial court. It is a admitted fact that neither parties preferred any appeal against the finding of the 1st appellate court made in the judgment and decree in A.S.No.6/2005. Therefore, it is crystal clear that the judgment and decree passed by the lower court in O.S.No.115/1999 became final.
16. However the judgment and decree passed by the court is whether within the jurisdiction of the court or the judgment and decree passed by the lower court was done beyond its jurisdiction, has to be considered. The main contention of the revision petitioner would be that the plaintiff did not claim any alternate relief for refund of earnest money that he was said to have paid to the petitioner, however the Trial court had granted the relief. For the purpose of appreciation of the said contention Section 22 of Specific Relief Act has to be extracted.
"22. Power to grant relief for possession, partition, refund of earnest money etc.-
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for
(a) possession, or partition and separate possession, of the property in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed;
Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
As per the said section the claim for alternate relief of the refund of earnest money should have been pleaded and there is no time limit for the plaintiff to make amendment in the prayer paragraph. The said provision would go show that the court has power to grant the relief of return of money said to have been paid by the respondent/plaintiff if amendment is ordered in the plaint. Therefore the jurisdiction of the court to grant relief has not been excluded but the only thing required as per the said Section was to ask for inclusion of the said relief. However the Trial court without asking for inclusion of such prayer had come to a conclusion of granting the said relief. The said act of the Trial court cannot be classified as without jurisdiction because the Trial court was impliedly vested under Section 22 of the Specific Relief Act with the jurisdiction of granting such relief. The judgment of Hon'ble Apex court as cited by the learned counsel for the respondent/plaintiff reported in AIR 1964 SC 907 in between (1) Ittyavira Mathai v. Varkey Varkey and another would clear the point as detailed below. Accordingly it has been stated as follows:
"Where a court having jurisdiction over the subject matter and the party passes a decree it cannot be treated as a nullity and ignored in subsequent litigation even if the suit was one barred by time."
...
"... If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity."
17. As per another judgment of Hon'ble Apex court relied upon by the learned counsel for the respondent/plaintiff in 2004 (1) SCC 287 in between Rafique Bibi (Dead) by Lrs. vs. Sayed Waliuddin (dead) by Lrs and Others, it has been categorically laid as follows:
"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 merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings of by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot e denuded of its efficacy by any collateral attack or in incidental proceedings."
On a careful understanding of the aforesaid judgments, we could see that when there is no jurisdiction for the court and yet a decree has been passed without a jurisdiction the decree passed by the said court could be held as a nullity. The mere wrong exercise of jurisdiction does not result in a nullity when the lack of jurisdiction is not patently found in passing the decree. Such decree should be respected by every party to the said decree and the execution court cannot go beyond the decree as it would bind both the parties as well as the executing court. Therefore, it is clear that the error committed by the lower court in finding a fact, even if true cannot make the decree a void one.
18. The contention of the petitioner/judgment debtor that the trial court did not discuss the pleas properly and had come to the conclusion and in the appeal preferred by the respondent before the first appellate court, the said error was not agitated by the revision petitioner and corrected by the first appellate court. Even if true those circumstances would not take away the jurisdiction of the court and they would not in anyway make the decree a void one. Moreover, it would not become a nullity. The right choice of the petitioner/judgment debtor should be preferring an appeal against the findings in the judgment and decree passed by the first appellate court as an aggrieved person, even though he did not prefer the first appeal. It was not done by the petitioner/judgment debtor against the judgment and decree passed by the appellate court as well as against the judgment and decree of trial court. They became final. Therefore, it cannot be held that the judgment and decree passed by the trial court in O.S.No.115/1999 as confirmed by the first appellate court in A.S.No.6/2005 cannot be held to be null and void decree or inexecutable. The lower court had also accordingly discussed the point at issue and had come to a conclusion of dismissing the claim of the petitioner/judgment debtor and ordered the further proceedings in the execution petition.
19. Therefore, this court cannot interfere with the fair and executable order passed by the lower court as illegal one set aside the same. In the result the civil revision fails and deserves to be dismissed.
20. In fine, civil revision petition is dismissed. Connected miscellaneous petition is closed. No costs.
kpr To, The Subordinate Judge, Udhagamandalam