Jharkhand High Court
Pushpalata vs Smt. Sneh Lata Goel on 17 July, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3298 of 2016
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Pushpalata, daughter of Late Rai Sri Krishna, resident of Garden House, Pandeypur, P.O. - Ardali Bazar, P.S.- Varanasi Cantt., Varanasi, Uttar Pradesh ... Petitioner Versus
1. Smt. Sneh Lata Goel, daughter of Late Rai Krishna and wife of late Baijnath Goel, resident of 11, Anand Chowk, Dehradun, P.O. & P.S. - Araghar, Uttarakhand presently resides at 21, Tegh Bahadur Road, P.S. - Dalanwala, Dehradun, Uttarakhand.
2. Sunny Johar s/o Late Surendra Singh Johar,
3. Smt. Somta J. Singh, d/o Late Surendra Singh Johar, Respondent Nos. 2 & 3 are residents of 125, A.G. Colony, Kadru, P.O & P.S. - Argora, District-Ranchi, presently resides at Ganesh Bag, 26/1-A, Kabir road, Varanasi, Uttar Pradesh ... Respondent
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. Shresth Gautam, Advocate For the Respondents : Mr. Anil Kumar Sinha, Sr. Advocate Mr. Sandeep Verma, Advocate
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15/17.07.2018 The petitioner, who was defendant no. 3 in Partition Suit No. 154 of 1985, is aggrieved of order dated 10.03.2016 by which her application under Section 47 CPC objecting to execution of the decree on the ground of lack of territorial jurisdiction of the Ranchi court has been rejected.
2. Stand taken by the petitioner is that an issue which was not conclusively decided at any stage, more precisely objection to jurisdiction of the Ranchi court, can be adjudicated in the application under Section 47 CPC and the executing court cannot declare that the petitioner - judgement-debtor has no right to file an application under Section 47 CPC.
3. Briefly stated, Partition Suit No. 154 of 1985 was instituted by Smt. Saroja Rani for a preliminary decree for partition to the extent of ¼ share in schedule 'B' and 2 schedule 'C' properties. The petitioner was made defendant no. 3 in the partition suit. The plaintiff in the partition suit is the daughter of late Rai Sri Krishna and the defendant nos. 2 and 3 are her own sisters whereas defendant no. 1 is her mother. The defendant nos. 1 and 3 and the defendant no. 2 have filed their separate written statements. But, after filing their written statements the defendants did not appear in the partition suit and the suit was decreed ex-parte. A preliminary decree was prepared on 13.06.1990 which has been challenged by the petitioner in First Appeal No. 43 of 2015. Execution Case No. 07 of 1992 was levied for execution of the preliminary decree prepared in Partition Suit No. 154 of 1985, however, the execution case was dismissed in default on 15.01.2009 and it is stated that the application for restoration of the execution case has also been dismissed. In the meantime, defendant no. 1 died on 09.02.1996. After death of the plaintiff's mother, a second final decree has been prepared on 18.12.2013 and thereafter a second execution case vide Execution Case No. 5 of 2014 has been levied by the defendant no. 2. According to the petitioner preparation of a second final decree and initiation of a second execution case vide Execution Case No. 5 of 2014 for execution of both the final decrees is precisely the reason why after about 25 years she was constrained to file an application under Section 47 CPC raising objection to executability of the decree prepared in Partition Suit No. 154 of 1985, for before that she had no occasion to file her objection under Section 47 CPC. Mr. Indrajit Sinha, the learned counsel for the petitioner submits that the final decree dated 05.04.1991 and the second final decree dated 18.12.2013 have been challenged by the petitioner in First Appeal No. 74 of 2015.
4. The respondents objected to the application under Section 47 CPC on the ground that once the partition suit was decreed vide judgement dated 13.06.1990 and a decree was prepared, objection to jurisdiction of the Ranchi court on the ground that item no. (i) of schedule 'B' properties never came 3 in share of the petitioner's father must stand rejected. Further plea taken by the respondents, with reference to Title Suit No. 114 of 1998 which was instituted by the petitioner on the ground that the judgement and decree in Partition Suit No. 154 of 1985 was obtained by playing fraud and Title Suit No. 176 of 2000 filed at Varanasi court challenging the judgement and decree in the partition suit, is that in view of dismissal of the aforesaid suits the issue pertaining to jurisdiction of the Ranchi court must stand concluded and while so, dismissal of these suits would constitute res-judicata or at least constructive res-judicata to maintainability of the application under Section 47 CPC.
5. The executing court by an order dated 10.03.2016 has dismissed the application under Section 47 CPC at the admission stage, holding that the executing court has no jurisdiction to entertain objection as to validity of the decree on the ground of jurisdiction and the objector has no legal right to file the instant petition. The aforesaid findings recorded by the executing court has now become an issue in controversy in the writ petition.
6. To support the impugned order dated 10.03.2016, Mr. Anil Kumar Sinha, the learned Senior counsel for the respondents has relied on a decision in "Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others" reported in (1970) 1 SCC 670.
7. Section 47 CPC provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and 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. Apparently, language of Section 47 CPC is expansive. No doubt, jurisdiction of the executing court under Section 47 CPC is limited, however, by now it is well-settled that executability of the decree, where a plea of lack of inherent jurisdiction of the court to pass the decree has been raised, can be decided by the executing court [refer "Harshad Chiman 4 Lal Modi Vs. DLF Universal Ltd. and Another" reported in (2005) 7 SCC 791].
8. From pleadings of the parties it is apparent that at the first instance the petitioner has raised an objection to jurisdiction of the Ranchi court to entertain Partition Suit No. 154 of 1985. This objection has been recorded in the judgement dated 13.06.1990 passed in the partition suit; of course no issue on jurisdiction was framed. The suit was decreed ex-parte. Dismissal of Title Suit No. 114 of 1998 in default can also not be construed to conclude the issue of jurisdiction raised by the petitioner. Equally true would be the position in law on dismissal of Title Suit No. 176 of 2000 instituted at Varanasi court. In that case plaint was rejected under Order VII Rule 11 CPC, but there would be no bar on instituting a fresh suit (refer Order VII Rule 13 CPC). The aforesaid issues which arise from pleadings of the parties have not been dealt with by the executing court while dismissing the application under Section 47 CPC, at the threshold. After all it was a partition suit in which whether item no. (i) of schedule 'B' properties belonged to the family of Rai Sri Krishna or not would be a core issue.
9. The executing court fell in serious error in law where it has observed that the executing court will have no jurisdiction to entertain an objection as to the validity of the decree on the ground of jurisdiction. Under Section 47 CPC the petitioner has not challenged the validity of the decree on merits, rather the plea taken by her is that the decree cannot be executed for it has been passed by a court which had no territorial jurisdiction to entertain Partition Suit No. 154 of 1985. It is stated that the preliminary decree as well as both the final decrees are under challenge before this Court. May be, there is huge delay according to the learned Senior counsel for the respondents in filing those first appeals, in the above facts, in my opinion, while observing that, "the judgement and decree passed in Partition Suit No. 154 of 1985 are quite legal and valid and executable and the above execution has rightly 5 been levied by decree-holder who is fully entitled to take possession of the properties allotted in her takhta", the executing court has again committed a serious error in law. Without examining the rival contentions, while making the aforesaid observations the executing court has exercised a power which is not legally vested in it. The executing court in my opinion cannot hold that the judgement and decree passed in Partition Suit No. 154 of 1985 are quite legal and valid. Its powers under Section 47 CPC are limited to the questions relating to the execution, discharge or satisfaction of the decree. On the validity and legality of the judgement and decree in the partition suit the executing court has no jurisdiction to return a finding. It is only the appellate court which can decide validity, legality or otherwise of a judgement and decree in the suit. An enquiry into jurisdiction of the court which has passed the decree should not be confused with validity of a decree on merits.
10. For the aforesaid reasons, finding serious infirmity in the impugned order dated 10.03.2016 passed in Execution Case No. 5 of 2014, it is set-aside. The application dated 20.05.2015 filed under Section 47 CPC is restored to its original place. The parties shall appear before the executing court on 27.07.2018, when the court shall fix a date for hearing "on admission".
11. In view of the fact that the parties are litigating for the last more than 30 years, the application under Section 47 CPC shall be decided expeditiously, and in no event beyond 6 months, without granting adjournment to the parties, but for just excuse.
12. The writ petition stands allowed, in the aforesaid terms.
(Shree Chandrashekhar, J.) Amit/