Madras High Court
S. Sachidanandam vs D. Kugan on 29 April, 2011
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 29.04.2011 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN C.R.P. NPD. No.3500 of 2001 1. S. Sachidanandam 2. M. Annapoorani ... Petitioners versus D. Kugan ... Respondent Petition has been filed under Section 115 of the Code of Civil Procedure against the order and decretal order dated 06.04.2000 made in M.P. No.213 of 1994 in E.P. No.133 of 1993 in the Ejectment Suit No.47 of 1992, on the file of the II Judge, Court of Small Causes, Chennai. For Petitioners : Ms. Shyamala for Mr. A. Subramania Iyer for first petitioner Mr. V.M. Rajavelu for second petitioner For Respondent : Mrs. Nilaphar for Mr. R. Subramanian ORDER
Heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondent.
2. Challenging the order dated 06.04.2000 made in M.P. No.213 of 1994, in E.P. No.133 of 1993 in Ejectment Suit No.47 of 1992 on the file of the II Judge, Court of Small Causes, Chennai, the revision has been preferred.
3. It is seen that an Ejectment Suit was filed by the first petitioner herein and his brother S. Mallikeswaran as plaintiffs against the respondent seeking a decree directing the respondent/ defendant to deliver possession of the property and other consequential relief. After the trial, by judgment dated 27.07.1993, the Small Causes Court decreed the suit as prayed for and the respondent/defendant was directed to vacate and hand over the possession within two months from the date of the decree. Aggrieved by which, the respondent herein preferred C.R.P. No.3385 of 1993 before this Court. This court by order dated 27.04.1994, after hearing both sides and considering the materials available on record dismissed the revision.
4. After the death of Mallikeswaran, the second petitioner was impleaded as his legal representative.
5. The respondent herein filed M.P. No.213 of 1994 under Section 47 of the Code of Civil Procedure before the E.P. Court to dismiss the E.P. on the ground that the Small Causes Court had no pecuniary jurisdiction on the date of filing of the Ejectment Suit. After hearing both sides, the II Small Causes Court, Chennai by the impugned order dated 06.04.2000 allowed the Miscellaneous Petition filed in M.P. No.213 of 1994 holding that the decree passed in the Ejectment Suit No.47 of 1992 by the IV Court of Small Causes on 27.07.1993 as nullity and unexecutable. Aggrieved by which, this revision has been preferred by the petitioners herein.
6. Ms. Shyamala, learned counsel appearing for the revision petitioners herein drew the attention of this court to the findings of the court below. It is seen that the respondent herein had raised a defence including in the jurisdictional aspect before the court below in the Ejectment Suit No.47 of 1992. After the trial, considering the evidence and the legal aspects, the suit was decreed. Aggrieved by the judgment and decree, the petitioners preferred revision in C.R.P. No.3385 of 1993 and that was dismissed by this Court. Learned counsel appearing for the revision petitioner submitted that the court below has passed the impugned order against law and against the decision of this Court and pleaded to set aside the same.
7. Per contra Mrs. Nilaphar, learned counsel appearing for the respondent submitted that fraud has been played by the petitioners in getting the decree in the Ejectment Suit, hence, M.P. No.213 of 1994 filed by the respondent was allowed. In support of her contention the learned counsel appearing for the respondent relied on the following decisions:
(i) Surinder Nath Kapoor vs Union of India and others reported in AIR 1988 Supreme Court 1777 wherein the Hon'ble Supreme Court has held as follows:
"There can be no doubt that when an order is made for the payment of a fictitious sum without giving any opportunity to a person, against whom the order is made, to show cause against the passing of such an order for the said sum, the order is a nullity. In other words, in the eye of law it will be deemed that there was no existence of such an order and any step taken pursuant to or in enforcement of such an order will also be a nullity. It will be tantamount to selling a property in execution of a decree when the decree has no factual existence. In such a case also, the sale will be null and void. the garnishee order that was passed in the instant case, by the IAC (Asstt), Range-II for the fictitious sum would, therefore, be null and void and any sale held pursuant to such an order is also a nullity."
(ii) Official Trustee, W.B. and others vs Sachindra Nath Chatterjee and another reported in AIR 1969 Supreme Court 823 wherein the Hon'ble Supreme Court has held as follows:
"Before a court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for".
(iii) In Sushil Kumar Mehta vs Gobind Ram Bohra (dead) through his L.Rs reported in (1990) 1 Supreme Court Cases 193 Full Bench of the Hon'ble Supreme Court has held as follows:
"Even if a decree which is made without jurisdiction and is a nullity is allowed by the courts below to operate and is executed during pendency of SLP, Supreme court would grant relief to the aggrieved party from injustice by setting aside the execution order".
(iv) In S.P. Chengalvaraya Naidu (dead) by L.Rs vs Jagannath (dead) by L.Rs and others reported in AIR 1994 Supreme Court 853 the Hon'ble Supreme Court has held that when there is fraud played on the part of the decree holder in getting the decree at any stage the decree could be set aside.
(v) In Kiran Singh and others vs Chaman Paswan and others reported in AIR1954 Supreme Court 340(1) the Hon'ble Supreme Court has held as follows:
"It is a fundamental principle 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 cured even by consent of parties".
8. After a careful consideration of the citation relied on by the learned counsel for the respondent, I am of the view that the aforesaid decisions are not applicable to the facts and circumstances of the case, since it cannot be construed that the petitioners herein as plaintiffs have played any fraud in getting the decree in the Ejectment Suit. Admittedly the respondent was the party to the proceeding and it was only a contested decree and further the decree passed by the court below in Ejectment Suit No.47 of 1992 was challenged by way of revision by the respondent herein and that was dismissed by this Court on merits. In the aforesaid circumstances, by the impugned order dated 06.04.2000, the Executing Court cannot re-appraise the evidence and reversed the view taken by the Trial court that was confirmed by this Court in the revision. It cannot be disputed that Subordinate Courts should maintain judicial discipline in passing orders. The E.P. Court, the II Judge, Court of Small Causes, Chennai has passed the impugned order dated 06.04.2000 against the judgment and decree passed by the Trial Court that was confirmed by this Court in C.R.P. No.3385 of 1993 dated 27.04.1994.
9. Learned counsel appearing for the respondent submitted that the respondent had filed a separate suit and that was dismissed, aggrieved by which, the respondent herein preferred first appeal and that was also dismissed, hence, the respondent has preferred second appeal that is pending before this court. It is open to the respondent to seek proper relief only in the second appeal. But, admittedly there was no stay granted by this court. In the aforesaid circumstances, I am of the view that the court below exceeding its limit passed the impugned order, which would not maintain judicial discipline, but only a contempt.
10. It is clear that as per Section 47 of the CPC. all questions arising between the parties to a suit in which the decree was passed, or therein representatives, relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. So far as the execution, discharge or satisfaction is concerned, if it is between the parties to the decree or between the parties and the legal heirs of the parties, the same has to be decided as contemplated under Section 47 of the Code of Civil Procedure and for which no separate suit is maintainable. However, while deciding the points involved in the Execution Proceedings, the Executing court can go beyond the decree and re-appraise the evidence and given a finding contrary to the decision rendered in the Ejectment that was confirmed by this court in the revision.
11. It is an admitted fact that the respondent herein was the defendant in the Suit and on contest the Suit was decreed by the Trial Court that was also confirmed by this Court in C.R.P. No.3385 of 1993. Hence, the respondent/judgment debtor cannot plead fraud against the petitioners/decree holders, before the E.P. Court in the petition filed under Section 47 of C.P.C. Similarly, the Executing Court has no competency to re-appraise the evidence, adduced before the Trial Court and decide that the decree in Ejectment Suit No.42 of 1992 as nullity and inexecutable.
12. In the aforesaid circumstances, I am of the view that the impugned order is illegal, against judicial discipline and as such the same is liable to be set aside. In the result, the Civil Revision Petition is allowed and the impugned order is set aside and the court below is directed to restore the E.P. No.133 of 1993, after providing reasonable opportunities to both the parties and dispose the same solely on merits, uninfluenced by the findings if any by this Court in this revision.
13. In the result, the Civil Revision Petition is allowed. No order as to costs.
vga To II Judge, Court of Small Causes, Chennai