Karnataka High Court
Yajaman Mothi Ajjappa vs Changalappa on 23 October, 1986
Equivalent citations: ILR1986KAR4137
ORDER 21 -- Powers of executing Court -- Can go behind the decree only to find whether decree is a nullity, passed by Court having no inherent jurisdiction at all. If the Court that passed the decree, had got the inherent jurisdiction, the executing Court cannot go into the question as to whether the decree passed by a Court having jurisdiction was in accordance with law or not. The Court has got the power to decide rightly as well as wrongly. The executing Court has no jurisdiction to find out as to whether the decree passed by a competent Court is in accordance with law or not. The executing Court can only determine the question as to whether the Court that passed the decree was competent and had jurisdiction to entertain the suit and to pass a decree or not. It has no jurisdiction to find cut as to whether the decree passed by such a competent Court or legal or not or is one supported by the evidence on record or is right or wrong. Therefore the law has wisely put a restriction on the jurisdiction of the executing Court. The executing Court can go behind the decree only to find out as to whether the decree is a nullity on account of the fact that it is one passed by a Court which had no inherent jurisdiction at all. ON FACTS : The executing Court cannot go behind the decree sought to be executed in this case, because it was a decree passed by the Court of the Civil Judge, Bellary which had the jurisdiction to pass the decree. The decree in question that is sought to be executed in the execution, might be one drawn in violation of the requirements of Rule 3 of Order 23 C.P.C. At the most, it may be stated that it is an inproper or erroneous decree or a decree drawn in violation of the requirements of Rule 3. But it cannot be said to be a decree passed by the Court without any inherent jurisdiction. The executing Court cannot decide the propriety or the correctness of the decree sought to be executed. ORDER Kulkarni, J.
1. This is a revision by the judgment debtor against the order dated 31-10-1984 passed by the Civil Judge, Davangere, in Execution Case No. 265 of 1983 over-ruling the objections of the judgment debtor.
2. The respondent decree holder filed a suit in O. S. No. 62 of 1980 on the file of the Civil Judge, Bellary, to recover money on the basis of a pronote, against the judgment-debtor-revision-petitioner. The judgment-debtor had filed a written statement in the said suit. It appears that on 12-10-1982, the Advocates appearing for the decree-holder and the judgment debtor, filed a compromise petition in the Court signed by themselves, but not signed by the parties. The Court of the Civil Judge recorded the compromise and passed a decree in terms of the compromise. That compromise decree passed by the Court of the Civil Judge, Bellary, was transferred to the Court of the Civil Judge, Davangere for execution. The Execution is numbered as Execution Case No. 265 of 1983.
3. The judgment-debtor-revision-petitioner contended that the said compromise decree was not one passed in accordance with law and that it was in violation of Order 23 Rule 3 C.P.C. as the parties themselves had not signed it. He, however, contended that the compromise decree sought to be executed, was not a valid one.
4. The executing Court negatived the contention of the judgment debtor and ordered the execution to proceed. Hence, the revision by the judgment debtor.
5. It is undisputed that the compromise filed in O.S. No. 62 of 1980 on the file of the Civil Judge, Bellary, was only signed by the Advocates of the judgment debtor and the decree holder and that it was not at all signed by the parties.
6. The Learned Counsel Shri Manjunath for the revision petitioner-judgment-debtor submitted that Order 23 Rule 3 C.P.C. required that the compromise must be in writing and signed by the parties and that the Court should be satisfied about the adjustment wholly or in part by the said compromise. According to him, there is nothing to indicate that the Court was satisfied about the compromise. According to him, it was not signed by the parties. In short, he contended that it was a compromise recorded by the Court in violation of Order 23 Rule 3 C.P.C. and thus, it was a decree passed by the court without jurisdiction, and thus it was a nullity and thus inexecutable. He referred me to an unreported decision dated 20th June, 1980 passed by this Court in C.R.P. No. 1522 of 1979, Poonam Confectionary v. National Products. It was a revision questioning the compromise recorded. It did not pertain to the stage of execution at all. It did not consider the question as to whether the executing Court could go behind such a decree passed by a Court having jurisdiction to entertain the suit. This Court in the said revision held that as the material requirement 'signed by the parties' was lacking in the case, the compromise was bad at law and hence the District Judge could not make an order under Order 23 Rule 3 C.P.C. in terms of the compromise. Therefore the said decision will not be of much help in the present case.
7. Order 23 Rule 3 C.P.C. reads as :-
"Compromise of suit :- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or whore the defendant satisfies the plaintiff in respect of the whole or any pan of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit.
Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide that question, but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation: - An agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this rule."
The words 'in writing and signed by the parties' have been introduced in the Section by the Amendment Act of 1976. These words have been purposely inserted in this Rule in order to see that the parties once they have entered into a compromise, should not further protract the proceedings by questioning the compromise and by leading the evidence to show one way or the other. The satisfaction that is contemplated by Rule 3 refers to an adjustment wholly or in part by any lawful agreement or compromise. The satisfaction mentioned by Rule 3 does not, in my opinion, cover the requirement 'in writing and signed by the parties'. The subjective satisfaction laid down by Rule 3 only relates to adjustment wholly or in part by any lawful agreement or compromise. The satisfaction must be only in relation to adjustment and is also regarding the fact as to whether the agreement or the compromise is lawful or not.
8. The learned Counsel Shri Manjunath referred me to Ferozi Lal Jain v. Man Mal & Anr., . It was a case filed for eviction under the provisions of the Delhi and Ajmer Rent Control Act, 1952. Section 13 of that Act has been extracted in the said decision. It reads as :
'Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant etc., etc.,"
By specifically using the words 'no decree or order', the Legislature has taken away the jurisdiction of the Court in passing a decree, unless the further provisions of the Act were satisfied. Thus, by the specific use of the words 'no decree or order', the Legislature has taken away the jurisdiction of the Court in passing an order of eviction unless it was satisfied that any one of the requirements laid down by Section 13 of the Act was satisfied. Therefore, it was under those circumstances that the Supreme Court held that as there was nothing to indicate that the Court was satisfied about any one of the ingredients laid down by Section 13, the decree was a nullity and was thus inexecutable.
9. The learned Counsel Shri Manjunath then referred me to Bhavan Vaja and Ors. v. Solanki Hanuji Khodaji Mansang and Anr., . What it laid down is us :-
"For construing a decree it can and in appropriate cases, it ought, to lake into consideration the pleadings as well as the proceedings leading up to 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 those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. The jurisdiction of execution Court does not begin and end with merely looking at the decree as it is finally drafted."
10. The learned Counsel Shri Manjunath then referred me to Srimati Sabitri Thakurain v. F. A. Savi and Ors., AIR 1921 Patna 354. The initial portion of the order in the said Patna case reads as :--
"Civil Revision No. 457 of 1925 is against the order of Mr. N. N. Chakravarthi, Subordinate Judge of Monghyr, dated 26th November 1924, directing that suit No. 10(sic) of 1920, instituted by the petitioner against the opposite party, be decreed in terms of a compromise petition filed on the 25th November, 1924.
Civil Revision No. 322 of 1925 is directed against the order of Mr. R. C. Choudhary, Subordinate Judge of Monghyr, dated 6th July, 1925, rejecting an application filed by the petitioner under Section 151, Civil P.C. for setting aside the decree passed on the basis of the compromise referred to above."
It is under those circumstances that the Patna High Court held that as there was nothing to show that the Court was satisfied about the lawfulness or otherwise of the agreement and the compromise, the decree passed in terms of the compromise was rather a nullity. The said Patna case does not lay down as to whether the executing Court can go behind the decree and find out as to whether it was a decree passed by the Court having jurisdiction or without jurisdiction. Therefore the said Patna case also will not be of much help to the revision petitioner in this case.
11. The learned Counsel Shri Manjunath then referred me to Indian Telephone Industries v. Jayaram Reddy, ILR 1985 KAR 2967. It was a case where the Court passed a decree in terms of the award without waiting for the expiry of 30 days prescribed. This Court held that Section 17 of the Arbitration Act made it imperative for the Court to wait for the expiry of the time prescribed for making an application to set aside the award. This Court held that on account of this mandatory provision which required the Court to wait for the statutory period of 30 days before it made the award into a decree, it should wait for 30 days. This Court held that on account of the said mandatory provision, the jurisdiction of the Court to make an award into a decree was suspended during the statutory period of 30 days. This Court held that the Court in which the suit was filed, was not competent at all to make an award into a decree until the expiry of 30 days. Thus it held that on account of suspension of the jurisdiction during the statutory period of 30 days, the Court which passed the decree in terms of the award, was not competent to pass it and had no inherent jurisdiction during the said suspended period to pass it and that therefore under those circumstances the decree passed was a nullity and was one passed without jurisdiction and that thus this aspect could be gone into by the executing Court, Therefore the case referred to above and decided by this Court, is a case where a decree was passed by a Court which had no inherent jurisdiction and which was not competent to pass the decree till the expiry of the statutory period of 30 days.
12. The learned author Shri Mulla in his Civil Procedure Code, Vol. I. 14th Edn. on page 291 has stated as :--
"Dealing with this question, the Supreme Court observed in Kiran Singh v. Chaman Paswan that a decree passed by a Court without jurisdiction was a nullity and that the invalidity could be set up whenever and wherever it was sought to be enforced or relied upon and even at the stage of its execution or even in collateral proceedings but where the defect in jurisdiction was of a kind which fell within the saving of Section 21 of the Code or Section 11 of the Suits Valuation Act, it could not be raised except in the manner and subject to the conditions mentioned therein. (A Full Bench of the Calcutta High Court has agains considered the question in Union of India v. Siddique Ahmed and it has held reviewing its previous decisions that no objection based on absence of territorial jurisdiction could be taken in execution unless it was apparent on the face of the decree."
The learned author has again dealt with this aspect of the matter on page 327 and it reads as :--
"If the question that arises between the parties or their representatives does not relate to the execution, discharge, or satisfaction, of the decree, the section does not apply and a separate suit will lie. The following are leading cases on the subject :--
"(1) Questions as to the validity of the decree :
The principle generally is that the Court executing the decree cannot go behind the decree and question its validity. The section assumes that a valid decree exists. It cannot hold an investigation to determine that the Court which passed the decree lacked jurisdiction to do so. Nor can it set aside a sale on the ground that it was illegal in the absence of leave by the Insolvency Court which had appointed the receiver."
The learned author has further stated on the same page as:-
"But in a recent decision the Supreme Court has stated that when the decree is passed by a Court which lacks the inherent jurisdiction to pass it, objection as to the validity of the decree can be raised in an execution proceeding if the objection appears on the face of the record."
Therefore the said commentary of the learned author goes to show that the executing Court can go behind the decree only for the purose of finding out as to whether the Court that passed the decree, had the inherent jurisdiction or not.
13. The Supreme Court in Hira Lal Patni v. Sri Kali Nath, has stated as : --
"It is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure."
The Supreme Court has further stated as :--
"The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin 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 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."
The said principle laid down by the Supreme Court clearly indicates that if the Court that passed the decree, had got the inherent jurisdiction, the executing Court cannot go into the question as to whether the decree passed by a Court having jurisdiction was in accordance with law or not. The Court has got the power to decide rightly as well as wrongly. The executing Court has no jurisdiction to find out as to whether the decree passed by a competent Court is in accordance with law or not. The executing Court can only determine the question as to whether the Court that passed the decree was competent and had jurisdiction to entertain the suit and to pass a decree or not. It has no jurisdiction to find out as to whether the decree passed by such a competent Court is legal or not or is one supported by the evidence on record or is right or wrong. Therefore the law has wisely put a restriction on the jurisdiction of the executing Court. The executing Court can go behind the decree only to find out as to whether the decree is a nullity on account of the fact that it is one passed by a Court which had no inherent jurisdiction at all.
14. A similar question arose in Frandol Taluka Gramodyog, Utpadak Sahakari Society, Erandol v. Sunil Waste Corporation, . It reads as :
"Section 164 of the Maharashtra Co-operative Societies Act is mandatory in its terms. It requires that requisite notice should be given prior to the institution of the suit either against co-operative society or its officer. If a suit is filed without giving such a notice, the suit is not maintainable. From this, however, it does not follow that non-compliance with the provisions of Section 164 is a defect which takes away inherent jurisdiction of the Court to try the suit or pass the decree. In such a case the decree would be contrary to the provision of law but would got be a decree passed by a Court without jurisdiction. This is a defeat which affects the maintainability of the Suit and not the inherent jurisdiction of the Court. Where a suit was instituted in a Court which admittedly had jurisdiction and a decree passed, though so notice under Section 164 of the Act was given prior to its institution, it was a decree passed contrary to Section 164 and it was open to the Society to challenge it on this ground in appeal. If it failed to do so the decree was binding between the parties and this point could not be agitated in execution proceedings as the executing Court could not go behind the decree."
(Underlining is mine)
15. This Court in Union of India v. Sripad Shankar Kulkarni, ILR 1935 KAR 1630 has stated as :-
"Even if a Court decides a matter and does not decide the point of limitation, it would be a decision rendered by the Court having jurisdiction. At the most the decision can be considered to be an erroneous decision and erroneous decision is not nullity.... The Executing Court cannot go behind the decree at all. It is not open to the Executing Court to go into the validity of the order which is sought to be executed. The Executing Court cannot refuse to execute a decree on the ground that the decree is improper and erroneous."
In the said case the Court proceeded to pass a decree without determining the question of limitation. It is no doubt true that it is one of the functions of the Court to find out as to whether the suit is in time or not. But the decision on that point can be done only by a Court competent to decide the same and having jurisdiction to decide the same. If the competent Court without deciding the question of limitation proceeds to pass a decree, it can be said at the most that the decree passed is improper or erroneous. It does not affect the competence or jurisdiction of the Court that passed the decree without determining the question of limitation.
16. A reference was made to Manohar Lal and Anr. v. Surjan Singh and Anr., . What the Punjab and Haryana High Court decided in the said case was that the requirement of the compromise to be in writing and signed by the parties governed the first part of Rule 3 of Order 23 C.P.C. and it did not apply to the later part of the second portion of Rule 3. That is not the point involved in this case. The question as to whether the executing Court could go behind such a decree and refuse to execute the decree, did not arise for consideration in the said case. A reference has been made in the said Punjab and Haryana case to the decision in Kesarla Raghuram v. Dr. Narasipalle Vasundara, . In the said Andhra Pradesh case, the compromise was signed only by the Advocates but not by the parties. It also does not appear to have arisen out of execution proceedings.
17. In this case, the Court of the Civil Judge, Bellary, was competent to entertain the suit for the recovery of the money and had got the jurisdiction territorial or pecuniary to entertain the suit. The recording of the compromise had been done by the Court which had the jurisdiction. Merely because the Court of the Civil Judge, Bellary, did not give sufficient attention to the requirement of Rule 3 of Older 23 C.P.C. which requires that the compromise should be in writing and signed by the parties, it does not affect the decree passed by it, because It is a Court having jurisdiction to decide the same. Merely because the requirements of Rule 3 were not followed or observed by the Court, it does not mean or follow that the decree is one passed by a Court having no jurisdiction. At the most, it can be said that it is an improper or erroneous decree or a decree passed in violation of the requirement of Rule 3. Therefore the executing Court rightly held that it cannot go behind the decree, because the Court that passed the decree sought to be executed, was a Court competent to entertain and pass the decree and had the inherent jurisdiction to entertain and pass the decree.
18. Therefore, the executing Court cannot go behind the decree sought to be executed in this case, because it was a decree passed by the Court of the Civil Judge, Bellary, which had the jurisdiction to pass the decree. The decree in question that is sought to be executed in the execution, might be one drawn in violation of the requirements of Rule 3 of Order 23 C.P.C. At the most, it may be stated that it is an improper or erroneous decree or a decree drawn in violation of the requirements of Role 3. But it cannot be said to be a decree passed by the Court without any inherent jurisdiction. The executing Court cannot decide the propriety or the correctness of the decree sought to be executed.
19. Therefore, under these circumstances, the Court below, in my opinion, was justified in over-ruling the objections of the judgment debtor in this connection.
20. Thus, in the result, the revision is dismissed.