Himachal Pradesh High Court
Govind Ram vs Shakuntla Sharma & Ors on 18 November, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C. R. No. 140 of 2019 .
Reserved on 13.11.2019 Date of decision: 18.11.2019 Govind Ram ..Petitioner/JD/Defendant No.1 Versus Shakuntla Sharma & Ors.
..Respondents/DH/Plaintiffs Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Yes.
Whether approved for reporting?1 For the Petitioner/JD: Mr. Shrawan Dogra, Sr. Advocate with Mr. Tejasvi Dogra, Advocate.
For the Respondents: Nemo.
Justice Tarlok Singh Chauhan, Judge It was way back in 1872 that the Privy Council while dealing with a case relating to the difficulties faced by a decree-
holder in execution of the decree observed that:
".... the difficulties of a litigant in India began many years when he has obtained a decree." (Refer: General Manager of the Raj Durbhunga vs. Coomar Ramaput Singh (1871-
72) 14 MIA 605: 20 ER 912).
2. It is really agonizing to note that the decree holders/ respondents are unable to enjoy the fruits of their success 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 2 despite the decree having been passed in their favour way back on 31.12.2001.
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3. Even in 1925, while quoting the aforesaid judgment of the Hon'ble Privy Council, the OUDH High Court in Kuer Jang Bahadur vs. Bank of Upper India, Ltd. 1925 OUDH 448, was constrained to observe that;
"Courts in India had to be careful to see that process of the Court and the law of procedure are not abused by judgment-debtors in such a way as to make Courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights."
4. The afore-stated observations made in 1925 were echoed by the Hon'ble Supreme Court in Babu Lal vs. M/s Hazari Lal Kishori Lal and others, (1982) 1 SCC 525, and it was observed as under:-
"29.Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections....."
5. Again in Marshall sons & Co. (I) Ltd. vs. Sahi Oretrans (P) Ltd. (1999) 2 SCC 325, the Hon'ble Supreme Court was constrained to observe as under:-
"4........It appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 3 appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long .
time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time........."
6. Once again in the matter of Shub Karan Bubna alias Shub Karan vs. Sita Saran Bubna & others (2009) 9 SCC 689, the Hon'ble Supreme Court observed as under:-
"27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintif will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigants."
7. In Ravinder Kaur Vs. Ashok Kumar & anr (2003) 8 SCC 289, the Hon'ble observed as under:
::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 4"22........Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to .
deny the decree holders the fruits of the decree obtained by them. This type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system."
8. In Gayatri Devi & ors Vs. Shashi Pal Singh, (2005) 5 SCC 527, the Hon'ble Supreme made the following observations:
"2.This appeal demonstrates how a determined and dishonest litigant can interminably drag on litigation to frustrate the results of a judicial determination in favour of the other side."
9. In Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna & ors (2009) 9 SCC 689, the Hon'ble Supreme Court has held as under:
"27 In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintif will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant."::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 5
10. Taking note of all these judgments, Hon'ble Bench of .
three Judges of the Hon'ble Supreme Court in Satyawati vs. Rajinder Singh and another (2013) 9 SCC 491 observed as under:-
"16. As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree-holder is unable to enjoy the fruits of his success by getting the decree executed, the entire efort of successful litigant would be in vain."
11. Adverting to the facts of the case, it would be noticed that the respondent filed a suit for specific performance of contract dated 04.07.1993, wherein further relief of permanent prohibitory injunction and damages were also prayed for.
12. The agreement sought to be enforced, reads as under:-
"AGREEMENT I am Radha Devi w/o Shri Tek Chand r/o Purani Mandi, District Mandi. I have a house Khewat No. 400 Min Khatauni No. 722 admeasuring 12.22 Khasra No. 1313, situated in Mohalla Upper Samkhetar, mandi Town. I have hereby agree to sell this house for Rs.40,000/- to Pt. Hari Krishan, Advocate r/o Upper Samkhetar. Today I have received Rs.5,000/- as advance. Balance amount I shall received at the time of registration of sale deed and the same day I shall hand over possession to above said Pt. Hari Krishan. Besides that, adjoining my house there is ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 6 one room Khewat No. 400 min Khatauni No. 721 min Khasra No. 1314 admeasuring 11.55 Sq. Mtrs wherein I .
have 1/3rd share. I agree to sell my share for Rs.3,000/-
to aforesaid Pt. Hari Krishan. In this regard I have received today Rs.500/- as advance. I shall receive balance amount at the time of registration of sale deed and the same day shall hand over its possession. If any party commits breach of this agreement then the same shall be liable to pay Rs.10,000/- as damages to the other party. Hence, this agreement is written in presence of witnesses so that it may be used whenever needed. Dated 4.7.1993.
Witness Signature Smt. Radha Witness
Devi w/o Tek Chand
Pushap Raj s/o Tilak r/o Purani Mandi Hem Raj s/o chuni r/o
Raj Mandi town
r/o Mandi Town Sd/- Radha Devi
Sd/- Hem Raj
Sd/- Pushap Raj
Witness & Scribe Signature Witness
Shri Hari Krishan s/o
Tara Chand s/o Beas Dev r/o Mohalla Mahendera Pal s/o Har
Raghivendra Sharma Upper Samkhetar, Dev, r/o Mohalla Tarna
R/o Mandi Town Mandi Town Mandi Town
13. The suit of the plaintiff was partly decreed for a specific performance of the aforesaid agreement as would be evident from the Decree Sheet of the learned Trial Court, which reads as under:-
"It is ordered that the suit of the plaintif is decreed partly for specific performance of agreement to sell dated 4.7.1993 Ext.PA. It is further ordered that the plaintif will deposit Rs. 37,500/- in the Court within a month from today and on the money being deposited the defendants shall execute the sale deeds within a month from the date of deposit of money in favour of the plaintif, failing which ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 7 the plaintif will be entitled to get the sale deed executed through court. It is further ordered that the suit of the .
plaintif is partly dismissed as for reliefs of permanent prohibitory injunction and damages are concerned. The parties are left to bear own costs.
14. It is not in dispute and rather admitted by the petitioner that the judgment and decree passed by the learned Trial Court has been affirmed right up to the Hon'ble Supreme Court inasmuch as the SLP preferred against the judgment and decree passed by this Court in RSA No. 461 of 2004 has been dismissed by the Hon'ble Supreme Court.
15. Armed with the decree the respondent/decree holder filed an execution petition to which objections were filed by the petitioner under Section 47 of the CPC mainly on the ground that the same was not executable as the decree holder alone was not the owner of the land but there are other co-sharers of the land in whose absence the decree could not be executed.
16. The learned executing Court dismissed the objection petition by concluding that the objections as raised by the JD/appellant questioning the merits of the decree and it is more than settled that the executing Court cannot go beyond the decree and was required to execute the decree as it is.
17. Aggrieved by the dismissal of the objection petition, JD has filed the instant petition reiterating the same and similar ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 8 grounds as were raised in the objection petition filed before the learned executing court.
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18. It is vehemently argued by Shri Shrawan Dogra, learned Senior Advocate duly assisted by Shri Tejasvi Dogra, learned Advocate that since the land did not exclusively belong to the decree holder, and was admittedly owned by other two persons, therefore, in absence of other two persons, the decrees
19.
r to passed by the learned Courts below are nullity and cold not be enforced.
Learned Counsel for the petitioner in support of his contention relied upon the following judgments:-
1. M. P. Shreevastava vs. Mrs. Veena, AIR 1967 SC 1193
2. Jaipur Development Authority vs. Radhey Shyam and others (1994) 4 SCC 370
3. Meenakshi Saxena and another vs. ECGC Limited and another (2018) 7 SCC 479
4. Harpal Singh vs. Ashok Kumar and another (2018) 11 SCC 113
20. However before adverting to the judgments relied upon by the learned counsel for the petitioner, it has to be seen that the main question which arises for consideration is as to how far the validity of a decree can be challenged before the executing Court.
21. It is well settled that only objection that can be raised before the executing Court is as regards the decree being ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 9 a nullity in the true sense and not the objection as regards its invalidity. The distinction between a nullity and an invalidity is .
the same distinction which is between the existence of jurisdiction and the exercise of jurisdiction. When the Court passing the decree lacks inherent competence over the subject matter or the parties, there is a total lack of jurisdiction. The lack of jurisdiction in such a case would go to the root and the decree passed by such a court which lacks inherent competence would be a complete nullity. This objection of nullity can, therefore, be set up even at the stage of execution or in collateral proceedings.
22. On the other hand, where the Court passing the decree does not lack inherent competence, but has jurisdiction over a suit, the decree passed by such a Court would be in the exercise of its jurisdiction. When the Court does not lack inherent jurisdiction, the decree passed by such a Court in the exercise of its jurisdiction may be vitiated by an illegality or even a material irregularity. Such jurisdictional error may even render the decree invalid but they would not make the decree a nullity. In the latter case, when the Court does not lack inherent jurisdiction, the objection as to the invalidity cannot be raised at the execution stage or in collateral proceedings as such a decree would remain ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 10 a valid decree until it is set aside in appeal or revision or SLP before the Hon'ble Supreme Court.
.
23. This distinction between a nullity and invalidity has been pointed out by their Lordships of the Supreme Court in Dhirendra Nath Goral v. Sudhir Chandra Ghosh and Ors.
AIR 1964 SC 1300, wherein the observations of the Hon'ble Justice Mookerjee, J. in Ashutosh Sikdar vs. Behari Lal Kirtania, ILR 35 Calcutta 61, after referring to Macnamara on "Nullity and Irregularities", it was observed as under:-
7. Even then, the question arises whether an act done in breach of the mandatory provision is per force a nullity. In Ashutosh Sikdar v. Behari Lal Kirtania. ILR 35 Cal 61 at p. 72 Mookerjee, J. after referring to Macnamara on "Nullity and Irregularities",observed :
".......no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or efect whatever, or is void and incapable of being validated".
Whether a provision falls under one category or the other is not easy of discernment, but in the ultimate analysis it depends upon the nature, scope and object of a particular provision. A workable test has been laid down by Justice Coleridge in Holmes v. Russell, (1841) 9 Dowl 487 which reads :
"It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 11 objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity."
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A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book "On the Interpretation of Statutes", 11th Edn., at p. 375, described the rule thus:
"Another maxim which sanctions the non-observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely forthe benefit and rprotection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy".
The same rule is restated in "Craies on Statute Law", 6th Edn., at p. 269, thus:
"As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without afecting the jurisdiction of the court."
The Judicial Committee in AL. AR. Vellayan Chettiar v. Government of Madras. 74 Ind App 223 at p. 228 : (AIR 1947 PC 197 at p. 199) pointed out that there was no inconsistency between the propositions that the provisions of S. 80 of the Code of Civil Procedure were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefit they were provided. In that case the Judicial Committee held that S. 80 of the Code of Civil Procedure was explicit ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 12 and mandatory; but still it held that it could be waived by the authority for whose benefit that was provided. This .
aspect of the law in the context of S. 35 of the Act was considered by a Division Bench of the Calcutta High Court in Gaya Prosad v. Dhanrupmal Bhandari, 58 Cal WN 503 at p. 508 : (AIR 1954 Cal 492 at p. 494). Dealing with this argument, P. N. Mookerjee, J., speaking for the court, observed:
"It is true that section 35 of the Bengal Money- Lenders Act casts a duty upon the court but such duty is solely for the benefit - the private benefit - of the judgment-debtor. It is, therefore, open to him to waive this benefit, or, in other words, to waive his objection of non-observance of that statutory provision by the court......
"Guha and Benerjee, JJ., expressed much to the same efect in 64 Cal WN 20: (AIR 1960 Cal 138) thus at p. 30 (of CWN): (at p. 142 of AIR):
"The Bengal Money-Lenders Act, 1940 enacted for the purpose of making better provision for the Control of money-lenders and for the regulation and control of money-lending, has certainly a public policy behind it. But some of its provisions, and Section 35 one of; them, are intended for the benefit of the individual judgment- debtors and have no public policy behind them. Such provisions may be waived by the person for whose benefit the same were enacted." A Division Bench of Patna High Court in Sheo Dayal Narain v. Mt.Moti Kuer, ILR 21 Pat 281 at p. 286 : (AIR 1942 Pat 238 at p. 240) speaking through Meredith, J., in the context of the provisions of S. 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939, which are pari materia with the provisions of S. 35 of the Bengal Money-Lenders Act, 1940, rejected the contention that a sale held in contravention thereof was a nullity in the following words:::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 13
"Illegal the sale may have been, in the limited sense that it was held in a manner at variance with a mandatory statutory provision. That provision, .
however, has no reference at all to the jurisdiction of the Court, It afords no foundation for the contention that the sale was one which the Court concerned had no power at all to hold."
Where the court acts without inherent jurisdiction, a party afected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiction to sell the property. We have assumed that S. 35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person afected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interest of the public, but the same cannot be said of S. 35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of hisproperty than is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him under S. 35 of the Act; for instance, if the part of the property carved out by the court for sale is separated from the rest of his property, the value of the remaining property may be injuriously afected by the said carving out, in which case the judgment-debtor may prefer to have his entire property sold so that he may realize the real value of the property and pay part of the sale price towards the decretal ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 14 amount. He cannot obviously be compelled to submit to the sale of a part of the property to his disadvantage. A .
provision intended for his benefit cannot be construed in such a way as to work to his detriment. But it is said that the proviso to S. 35 of the Act indicates a contrary intention .
Under that proviso, "if the highest amount bid for the property so specified is less than the price so specified, the Court may sell such property for such amount, if the decree-holder consents in writing to forego so much of the amount decreed as is equal to the diference between the highest bid and the price so specified." This is only an option given to the decree-holder; he may exercise this option, if he does not like to go through the entire sale proceeding over again. In one contingency this proviso also works for the benefit of the judgment-debtor, for he will be relieved of part of his indebtedness. But anyhow this does not show that the main provision is not intended for the benefit of the judgment-debtor. We are, therefore, satisfied, on a true construction of S. 35 of the Act, that it is intended only for the benefit of the judgment-debtor and, therefore, he can waive the right conferred on him under S. 35 of the Act.
24. Equally settled is the proposition that the validity of a decree can be challenged in the executing proceedings only on the ground that the Court which passed the decree lacking inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 15 which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject matter of the suit .
or over the parties to it.
25. The aforesaid, in fact, is the ratio that has been laid down in all the judgments relied upon by the learned Counsel for the petitioner (Para 19 Supra). However, in the present case, admittedly, the suit for specific performance was maintainable only before the Civil Court and, therefore, the Court did not lack inherent jurisdiction and the decree in such a case would not be a nullity and it is, therefore, not open to challenge in the execution proceedings.
26. This in fact is the ratio laid down not only in the above cited judgments but even in the latest judgments of the Hon'ble Supreme Court and reference in this regard conveniently be made to Sneh Lata Goel vs. Pushplata and others, (2019) 3 SCC 594 and S. Bhaskaran vs. Sebastian (dead) by LRs & Ors. (2019) (9) SCC 161, wherein it was reiterated that an executing Court cannot travel beyond the order or decree under execution.
27. As regards the objections with respect to the other co-sharers and co-owners not joining as party, it is settled law that one of the co-owners can file a suit in his own right and while doing so the consent of other co-owners is assumed as ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 16 taken and this is purely an arrangement inter se the co-owners of which no third party can taken advantage and it is no defence .
to a stranger to question the maintainability of the suit on the ground that the other co-sharers were not joined as party to the suit.
28. Having lost right up to the Hon'ble Supreme Court and having dragged the decree holder and a litigation for nearly 25 years in a suit instituted on 06.12.1994, the petitioner cannot be permitted to drag on the litigation like unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount or enter into an unconscionable bargain. It has to be remembered that Court proceedings are sacrosanct and should not be permitted to be polluted by unscrupulous litigants. The petitioner by keeping these proceedings alive cannot be permitted to gain undeserved and unfair advantage.
29. In view of the aforesaid discussion, I find no merit in this petition and the same is dismissed in limine.
30. Before parting, it needs to be observed that even though this is a fit case where exemplary costs ought to have been awarded but since no notice of the petition was ordered to be issued to the opposite party i.e. respondent, I refrain from doing so. It is hoped that the petitioner shall not indulge in any ::: Downloaded on - 18/11/2019 20:24:52 :::HCHP 17 such misadventure in future so as to prevent the decree holder from enjoying the fruits of the decree or else the Court may not .
be so considerate in future.
18th November, 2019 (Tarlok Singh Chauhan)
(sanjeev) Judge
r to
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