Madhya Pradesh High Court
State Bank Of India Thr. vs Harsh Wood Product Pvt. Ltd. Thr. on 18 March, 2019
-( 1 )- CR No. 194/2018
State Bank of India and another vs. Harsh Wood Product P.Ltd.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
CIVIL REVISION NO. 194 OF 2018
State Bank of India & another ..... PETITIONERS
Versus
Harsh Wood Product Pvt.Ltd.
and others .....RESPONDENTS
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CORAM
Hon. Shri Justice Rajeev Kumar Shrivastava
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Appearance
Smt. Shobha Menon, learned senior counsel with Shri
M.P.Agarwal and Shri Rahul Choubey, Advocates for the
petitioners.
Shri Sameer Kumar Shrivastava, learned counsel for the
respondents.
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Whether approved for Reporting : No
Reserved on : 25.02.2019
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ORDER
(Passed on 18th March, 2019) The present Civil Revision under Section 115 of the Code of Civil Procedure has been preferred by the petitioners/revisionist/State Bank of India, being crestfallen by the -( 2 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
order dated 20.2.2018, i.e., Annexure A/1, passed by Seventh Additional District Judge, Gwalior, whereby review application preferred by the petitioners has been rejected and order dated 5.12.2017, i.e., Annexure A/2, passed by the same Court, has been maintained.
2. The facts of the case in brief are that the respondent No.1- decree holder entered into contract with the State of Madhya Pradesh for purchase of Khair trees for manufacturing of Kattha.
In pursuance of the said contract, the petitioner-State Bank of India furnished 11 bank guarantees on behalf of the respondent No.1, to the tune of Rs.8,88,888/-. In turn, the respondent No.1 gave counter guarantees of FDRs and respondent No.2 also furnished security in the shape of SBI Magnums shares worth Rs.8,90,000/- as guarantor of respondent No.1. The bank guarantees furnished by the Bank were invoked and encashed by the Divisional Forest Officer, Morena vide letter dated 6.11.1995.
After encashment of the bank guarantees, the petitioner-Bank told the respondents to liquidate their liability but no heed was paid. As a consequent thereto, petitioner-Bank realised its money by selling SBI Magnum shares for Rs.7,45,375/- and for the remaining amount of Rs.2,33,683/- filed regular Civil Suit No. 19-B/2001.
3. In the civil suit filed by the petitioner-Bank, respondents -( 3 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
filed their written statement and respondent No.1 filed its counter claim against the adjustment made by the petitioner from the FDRs to the tune of Rs.3,50,400/-. The respondent No.2 claimed that her SBI Magnum shares were sold at lesser price without any prior notice, which has resulted in loss to the respondents to the tune of Rs.10,00,000/-.
4. The trial Court after marshalling the evidence available on record decreed the suit in favour of the petitioner-Bank and rejected the counter claim preferred by the respondents. Aggrieved by which, only the respondent No.1 filed First Appeal No. 187/2005 before this Court and no appeal was preferred by respondent No.2. The First Appellate Court allowed the first appeal preferred by the respondent No.1 and set aside the judgment and decree passed by the trial Court. While allowing the first appeal, this Court directed that respondent No.1 would be entitled for the amount of FDRs along with 12% interest but erroneously and without any jurisdiction also granted relief in favour of respondent No.1 that he would be entitled to recover the interest payable on Magnum shares at the rate which was payable on monthly basis, whereas the said claim was never set up by the respondent No.1. The said Magnum shares was belonging to respondent No.2, who did not file any appeal against rejection of -( 4 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
her counter claim by the trial Court and the judgment and decree against respondent No.2 has attained finality
5. It is submitted by learned counsel for the petitioners that the judgment and decree passed in favour of petitioners/plaintiffs has been set aside by Appellate Court vide judgment and decree dated 17.5.2013, i.e., Annexure A/5, whereby the counter claim filed by the respondents, which was earlier rejected by the trial Court, has been virtually allowed. Although, Special Leave Petition preferred at the instance of the present petitioners fetched no result as the same was dismissed in limine, still the question of jurisdictional error committed by the Appellate Court was available to the petitioners to raise even before the Executing Court. The petitioners filed an application under Order 21 Rule 26 and Rule 29 of CPC, along with the application for stay, wherein averments were made with regard to fraud played by the respondents by suppressing the material facts while obtaining judgment and decree dated 17.5.2013. It was also pleaded that the respondent No.1 has played fraud as they have already received the bank guarantee amount to the tune of Rs.8,88,888/- from the State Government/Forest Department in a suit filed by him against the Forest Department, but the petitioners could not place on record the relevant document, and it was prayed that without divulging -( 5 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
the factum of filing of civil suit/execution proceedings against the State Government/Forest Department, for recovery of amount which also included the amount towards bank guarantee, fraud has been played by the respondents. But, the Executing Court proceeded further and caused illegality and perversity while not considering the submissions of the petitioners and proceeded with the execution of the judgment and decree passed by the Appellate Court, which could not be executed. Therefore, the orders impugned suffer from jurisdictional error. It is also submitted that the relief sought by the respondents was based on the fraud, hence still the revisionists are having jurisdiction to challenge the judgment and decree. But, the Appellate Court has not passed speaking order and only the arguments advanced have been reiterated in the order but no specific finding has been given by the Court below. Therefore, prayed for allowing the present revision.
6. In support of the aforesaid submissions, learned senior counsel for the petitioner has placed reliance on the following judgments:
(a). Bachhaj Nahar Vs. Nilima Mandal & Ors. Reported in AIR (2009) SCC 1103, wherein Hon'ble Apex Court has held that:--( 6 )- CR No. 194/2018
State Bank of India and another vs. Harsh Wood Product P.Ltd.
16. The observation of the High Court that when a plaintiff sets forth the facts and makes a prayer for a particular relief in the suit, he is merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropriate in a civil suit while proposing to grant as relief, a lesser or smaller version of what is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rs.one lakh, the court cannot grant a decree for Rs. Ten lakhs. In a suit for recovery possession of property `A', court cannot grant possession of property `B'. In a suit praying for permanent injunction, court grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.
17. In the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right. In the absence of pleadings and an opportunity to the first defendant to deny such claim, the High Court could not have converted a suit for title into a suit for enforcement of an easementary right. The first appellate court had recorded a finding of fact that plaintiffs had not made out title. The High Court in second appeal did not disturb the said finding. As no question of law arose for consideration, the High Court ought to have dismissed the second appeal. Even if the High Court felt that a case for easement was made out, at best liberty could have been reserved to the plaintiffs to file a separate suit for easement.
But the High court could not, in a second appeal, while rejecting the plea of the plaintiffs that they were owners of the suit property, grant the relief of injunction in regard to an easementary right by assuming that they had an easementary right to use the schedule property as a passage.
(b). Superintending Engineer and others Vs. B. Subba -( 7 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
Reddy reported in (1999) 4 SCC 423, wherein Hon'ble Apex Court has held that:-
23. From the examination of these judgments and the provisions Of Section 41 of the Act and Order 41 Rule 22 of the Code, in our view, following principles emerge:
(1) Appeal is a substantive right. It is a creation of the statute. Right to appeal does not exist unless it is specifically conferred, (2) Cross objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well.
(3) Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by indigent person also apply to cross- objection.
(4) Everi Where the.appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.
(5) Respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal.
This time could also be extended by the Court like in appeal.
(6) Cross-objection is nothing but an appeal, a cross- appeal at that. It may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order.
(c). Biswajit Sukul Vs. Deo Chand Sarda & others reported in (2018) 10 SCC 584, wherein Hon'ble Apex Court has held that:-
-( 8 )- CR No. 194/2018State Bank of India and another vs. Harsh Wood Product P.Ltd.
12) First, the first appellate Court committed a jurisdictional error in deciding the legality and correctness of the first part of issue No. 4 on merits. Mere perusal of the judgment of the Trial Court would go to show that while answering the issues, the Trial Court had divided issue No. 4 in two parts.
So far as first parts concerned, it was in relation to the question as to whether defendant No. 1 was the plaintiff's tenant or not. In other words, it was in relation to the question as to whether the plaintiff was able to prove the relationship of landlord and tenant between him and defendant No. 1 in relation to suit premises. Indeed, this was one of the main questions involved in the suit.
13) This question, i.e., first part of issue No.4 was decided by the Trial Court in plaintiff's favour wherein it was held that defendant No.1 was the plaintiff's tenant. So far as second part of issue No.4 is concerned, it was in relation to the question as to whether defendant No.1 was a defaulter in payment of rent to the plaintiff. This question was answered by the Trial Court against the plaintiff and in defendant No.1's favour wherein it was held that defendant No.1 did not commit any default in payment of rent to the plaintiff. It is for this reason, the suit was dismissed.
14) The plaintiff in his first appeal did not challenge the finding of the Trial Court recorded on the first part of issue No.4 and rightly so because it was already answered by the Trial Court in his favour. The First Appellate Court, therefore, could not examine the legality and correctness of this finding in plaintiff's appeal unless it was challenged by the defendants by filing cross objection under Order 41 Rule 22 of the Code in the appeal.
15) As mentioned above, the defendants though suffered the adverse finding on first part of issue No. 4 but did not file any cross objection questioning its legality. In the light of these admitted facts arising in the case, the First Appellate Court had no jurisdiction to examine the legality and correctness of the finding on first part of issue No. 4 in plaintiff's appeal and reverse it against the plaintiff.
16) Second, the High Court also committed the same mistake by not noticing the aforesaid jurisdictional error committed by the First Appellate Court. The High Court, in plaintiff's revision again, went into the legality of the findings of first part of issue No.4 on merits and affirmed the finding of the First Appellate Court. This finding ought to have been set aside by the High Court only on the short ground that the First Appellate Court had no jurisdiction to examine it in plaintiff's appeal.
-( 9 )- CR No. 194/2018State Bank of India and another vs. Harsh Wood Product P.Ltd.
(d). Banarsi and others Vs. Ram Phal reported in (2003) 9 SCC 606, wherein Hon'ble Apex Court has held that:-
13. We are, therefore, of the opinion that in the absence of cross appeal preferred or cross objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross objection.
(e). Sunder Dass Vs. Ram Prakash reported in AIR (1977) SC 1201, wherein Punjab High Court has held that:-
3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and whenever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral -( 10 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan(1) and Seth Hiralal Patni v. Sri Kali-Nath.(2) It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent.
(f). Chiranjilal Shrilal Goenka (Deceased) through Lrs.
Vs. Jasjit Singh and others reported in (1993) 1 SCC 507, wherein Hon'ble Apex Court has held that:-
18. It is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root to its jurisdiction of lacks inherent jurisdiction is a corum non judice. A decree passed by such a court in a nullity and is nonest. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh & Anr. v. Muni Subrat Dass & Anr., [1969] 2 SCR 432 an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to the arbitration. An award was made directing the tenant to run the workshop upto a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Smt. Kaushalya Devi and Ors. v. KL. Bansal, AIR 1970 SC 838. In Ferozi Lal Jain v. Man Mal & Anr., AIR 1979 SC 794 a compromise dehore grounds for eviction was arrived at between the parties under section 13 of the Delhi and Ajmer -( 11 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
Rent Control Act. A decree in terms thereof was passed. The possession was not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs. JT 1989 (SUPPI.) SC.329 the Civil Court decreed eviction but the building was governed by Haryana Urban (Control of Rent & Eviction) Act 11 of 1973. It was held that the decree was without jurisdiction and its nullity can be raised in execution. In Union of India v. M/s. Ajit Mehta and Associates. Pune and Ors., AIR 1990 Bombay 45 a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under section 30 of the Arbitration Act. The Division Bench held that Clause 70 of the, Contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both. parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the Contract. Pursuant to this contract under section 8 of the Act, an Arbitrator was appointed and award was made, Its validity was questioned under section 30 thereof. The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case law held that Section 8 cannot be invoked for appointment of an Arbitrator unilaterally but be available only. under section 20(4) of the Act. Therefore, the very appointment of the Arbitrator without consent of both parties was held void being without jurisdiction. The Arbitrator so appointed inherently lacked jurisdiction and hence the award made by such Arbitrator is nonest. In Chellan Bhai's case Sir C. Farran, Kt., C.J. of Bombay High Court held that the Probate Court alone is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of Will to arbitration. It was also held that the executor having propounded a Will, and applied for probate, a caveat was filed denying the execution of the alleged Will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction.
(g). Indian Oil Corporation Ltd. Vs. State of Bihar and others reported in (1986) 4 SCC 146, wherein Hon'ble Apex Court has held that:-
6. We are clearly of opinion that the view taken by the -( 12 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground. As observed by this Court in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Another, [1978] 3 S.C.C. 119 the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re-opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issue must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.
7. This enunciation of the legal position has been reiterated by this Court in Ahmedabad Manufacturing & Calico Printing Company Ltd. v. Workmen and Anr, [1981] 3 S.C.R. 213. The principles laid down in the two decisions cited above fully govern the present case.
8. It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court. It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court not to grant special leave -( 13 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
except where the party cannot claim effective relief by approaching the concerned High Court under Article 226 of the Constitution. In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order especially in view of the rulings already given by this Court in the two decisions afore-cited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition.
(h). Subhadra Rani Pal Choudhary Vs. Sheirly Weigal Nain and others reported in (2005) 5 SCC 230, wherein Hon'ble Apex Court has held that:-
29. The learned counsel submitted that the order of the High Court stood merged with that of the order of this Court.
In this connection reference may be made to decisions of this Court in Kunhayammed Vs. State of Kerala, Indian Oil Corpn. Ltd. Vs. State of Bihar, Union of India Vs. All India Services Pensioners Assn., Supreme Court Employees' Welfare Assn. Vs. Union of India, CIT Vs.Shree Manjunatheaware Packing Products & Camphor Works and P. Nallammal Vs. State. The principle of merger is not applicable to the present case as both the special leave petitions filed by Respondent 1 were dismissed by this Court and, therefore, the orders passed by the Division Bench of Calcutta dated 11-8-1987 and 4-12-1989 did not stand merged with the order of the Apex Court dated 2-1-1995. The dismissal in limine does not amount to upholding of the law propounded in the decision sought to be appealed against.
(i). Palam Gas Service Vs. Commissioner of Income Tax reported in (2017) 7 SCC 613, wherein Hon'ble Apex Court has held that:-
19. Insofar as judgment of the Allahabad high Court in the case of CIT Vs. Vector Shipping Services (P) Ltd., (2013)357 ITR 642 is concerned, reading thereof would reflect that the High Court, after noticing the fact that since the amounts had already been paid, it straightaway concluded, without any discussion, that Section 40(a)(i-a) would apply only when the -( 14 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
amount is "payable" and dismissed the appeal of the Department stating that the question of law framed did not arise for consideration. No doubt, the special leave petition thereagainst was dismissed by this Court in limine. However, that would not amount to confirming the view of the Allahabad High Court[see V.M. Salgaocar & Bros. (P) Ltd. Vs. CIT and Supreme Court Employees' Welfare Assn. Vs. Union of India].
(j). Gangadhara Palo Vs. Revenue Divisional Officer & another reported in (2011) 4 SCC 602, wherein Hon'ble Apex Court has held that:-
3. As regards the maintainability of the review petition, Mr. Sanjay Kapur, learned counsel for the respondent submitted that it was not maintainable because against the main judgment of the High Court dated 19th June, 2001 dismissing the writ petition of the appellant herein, CIVIL APPEAL NO.5280 OF 2006 the appellant herein filed a special leave petition in this Court which was dismissed on 17th September, 2001.
4. The aforesaid order of this Court dismissing the special leave petition simply states "The Special Leave Petition is dismissed". Thus, this order gives no reasons. In support of his submission, learned counsel for the respondent has relied upon a decision of this Court in the case of K. Ajamouli vs. A.V.K.N. Swamy (2001) 5 SCC 37 and has submitted that there is a distinction between a case where the review petition was filed in the High Court before the dismissal of the special leave petition by this Court, and a case where the review petition was filed after the dismissal of the special leave petition by this Court.
7. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever.
It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however -( 15 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in the cases of Kunhay Ammed & CIVIL APPEAL NO.5280 OF 2006 Others vs. State of Kerala & Another (2000) 6 SCC 359; S.Shanmugavel Nadar vs. State of Tamil Nadu & Another JT 2002 (7) SCC 568; State of Manipur vs. Thingujam Brojen Meetei AIR 1996 SC 2124; and U.P.State Road Transport Corporation vs. Omaditya Verma and others AIR 2005 SC 2250).
8. A judgment which continues to exist can obviously be reviewed, though of course the scope of the review is limited to errors apparent on the face of the record but it cannot be said that the review petition is not maintainable at all.
7. Per Contra, learned counsel for the respondents opposed the revision and submitted that no ground of fraud was taken by the petitioners at any stage and Hon'ble Apex Court has dismissed SLP in limine. The impugned order is a detailed and reasoned order and looking to the scope of review the impugned order is just and appropriate and does not call for any interference. Hence, prayed for dismissal of the revision.
8. In support of his contentions, learned counsel for the respondent placed reliance on Bhure Singh Vs. Ram Gopal reported in (1973) JLJ 218 and Fattelal Vs. Rmdulare reported in (1966) JLJ SN 59 and on the following judgments:
(a) In the case of Ravinder Kaur v. Ashok Kumar & another reported in AIR 2004 SC 904, it is observed that:
16. Therefore, it is clear though for the sake of an objection a dispute in regard to the correctness of the site plan was raised in the objections to the ejectment petition the same was neither supported by evidence nor as could be seen -( 16 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
from the records even challenged in arguments. The part of the evidence of the first respondent extracted herein above clearly shows that he admitted the correctness of the site plan.
(b) In the case of Balwant N. Vishwamitra and others Vs. Yadav Sadashiv Mule and others reported in AIR 2004 SC 4377, it is observed that:
14. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings.
18. As already stated hereinabove, proceedings were initiated against the heirs and legal representatives of deceased Papamiya and a decree was passed by competent court having jurisdiction over the subject-matter of the suit.' From the record, it is clear that the plaintiffs tried their best to get the names, addresses and other Information regarding heirs and legal representatives of Papamiya. For the said purpose, notices were sent to heirs and legal representative of the deceased by registered post which had come back. A notice under certificate of posting did not come back. A notice was, therefore, affixed on the suit premises. An attempt was also made to get names and addresses of heirs of the deceased Ahmed who was said to be staying at Bhandup, but no such Information was received by the plaintiffs. From the record, it is also clear that defendants were aware of the proceedings and they had engaged Mr. G.R. Singh, advocate who was appearing in the matter. On 25th March, 1980, he was present when plaintiff No. 2 was examined on oath and was partly cross-examined by Mr. Singh. Thereafter, with the permission of the court, Mr. Singh withdrew his appearance because he had no instructions in the matter from the defendants and a decree was passed.
19. In our considered opinion, such a decree, by no stretch of imagination, can be described nullity. If the decree is not null and void, as per settled law, appropriate proceedings will have to be taken by the persons aggrieved by such decree.
(c) In the case of Chandramohan Ramchandra Patil & others Vs. Bapu Koyappa Patil (Dead) through Lrs & another reported in (2003) SCC 552, it is observed that :
-( 17 )- CR No. 194/2018State Bank of India and another vs. Harsh Wood Product P.Ltd.
11. In our opinion, these two questions have been lucidly answered by the High Court by considering the arguments advanced before it on relationship and adverse possession.
We, therefore, find that there is more thatn substantial compliance of the provisions of Section 100 of the Code of Civil Procedure and a prayer for remand is absolutely without any merit. The suit of the year 1977 under the second appeal in the High Court was decided in the year 1990. We have given full hearing to the parties on all questions of law raised or which would be raised before the High Court. A prayer for remand of the case in such circumstances for fresh decision of second appeal is wholly uncalled for.
(d) In the case of Vasudev Dhanjibhai Modi vs Rajabhai Abdul Rehman & Ors reported in (1970) 1 SCC 670, it is held that:
A Court executing a decree cannot go behind the decree :
between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
The High Court was of the view that where there is lack of inherent jurisdiction in the Court which passed the decree, the executing Court must refuse to execute it on the ground that the decree is a nullity. But, in our judgment, for the purpose of determining whether the Court which passed the decree had jurisdiction to try the suit, it is necessary to determine facts on the decision of which the question depends', and the objection does not appear on the face of the record, the executing Court cannot enter upon and enquiry into those facts. In the view of the High Court since the land leased was at the date of the lease used for agricultural purposes and that it so appeared on investigation of the terms of the lease and other relevant evidence, it was open to the Court to hold that the decree was without jurisdiction and on that account a nullity. The view taken by the High Court, in our judgment, cannot be sustained.
(e) In the case of Moolchand Vs. Mangilal reported in (1965) JLJ 147, it is held that:-( 18 )- CR No. 194/2018
State Bank of India and another vs. Harsh Wood Product P.Ltd.
6. It is plain that the two decisions are conflicting.
Whereas in the case of Lakhmichan Vs. Biharilal, it has been held that a decree passed on the basis of an unregistered award embodying a charge is not nullity, in the case of Uttamchand Motilalji Vs. Wasudeo Deorao, it has been ruled that such a decree is a nullity. Now, the well settled rule is that an executing Court must take and execute the decree as it stands except where it is shown that the Court passing the decree had no jurisdiction to pass it. If a decree is passed by a Court without jurisdiction, then its validity can be questioned whenever the decree is sought to be enforced or relied upon. This is clear from the decision of the Supreme Court in Kiran Singh Vs. Chaman Paswan.
7. A distinction must, however, be drawn between a decree which is a nullity and decree which is ot according to law in that the Court passing the decree ignored certain provisions of the law. The equally well settled rule with regard to the power of the executing Court to question the legality or correctness or validity of a decree is that a decree may not be according to law, yet it is binding and conclusive between the parties until it is set aside either in appeal or in revision, and the executing Court has no jurisdiction to refuse to execute the decree on the ground that it is not according to law. If a Court passing the decree had jurisdiction to pass it, then even if the decree is contrary to certain provisions of law, it would not be a nullity and a plea about the illegality of the decree cannot be entertain in execution proceedings. This matter has been put by Gajendragadkar, J. (as he then was) in Harkishan Das Vs. Gulab Das, thus -
In determining the jurisdiction of the executing Court to entertain pleas under S. 38, Civil P. C., it is always necessary to make a distinction between pleas that tend to show that the decree in question is a nullity and pleas that merely challenge the validity or the propriety of the decree on the ground that it is contrary to the provisions of law. If the plea is that the decree is a nullity and so cannot be executed, it would be open to the executing Court to entertain the plea.
On the other hand, if the plea is that the decree is contrary to law int the sense that in passing the said decree certain provisions of the law have been ignored or contravened that would not necessarily make the decree a nullity and allegations about the impropriety or the illegality of the decree cannot be entertained in execution proceedings.
-( 19 )- CR No. 194/2018State Bank of India and another vs. Harsh Wood Product P.Ltd.
9. Heard the learned couns3el for the parties and perused the documents available on record.
10. Order XLVII of CPC provides 'Review', which reads as under:-
"1. Application for review of judgment.-- (1) Any person considering himself aggrieved.--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
11. On a careful scrutiny of the material available on record, it is apparent that there is no sufficient reason to believe that there was any misconception of fact or law or there is any mistake by misreading of the admitted material on record, which manifestly do not come within the purview of connotation of the expression 'discovery of new facts' and 'error apparent on the face of record' and as such it may not constitute sufficient reason to review the said order and it also cannot be said that there is discovery of new -( 20 )- CR No. 194/2018 State Bank of India and another vs. Harsh Wood Product P.Ltd.
evidence on a question of fact.
12. If the facts involved in the present matter are tested on the anvil of the aforesaid provision, it is clear that learned counsel for the petitioners has come up with the case that fraud has been played and the ground of fraud taken after prolonged trial of the case does not come within the purview of 'error apparent on the face of the record' rather it shows the malafide on the part of petitioner to prolong the proceedings. Hence, in the absence of any error apparent on the face of the record, the Courts below, in the considered view of this Court, have not committed any illegality or perversity or it cannot be said that the Courts below have not applied their judicial mind while considering the objections raised by the petitioners.
13. In view of the foregoing reasons, I do not find any force in the present civil revision warranting interference by this Court.
The revision sans substance and is hereby dismissed.
(Rajeev Kumar Shrivastava)
(yog/neetu) Judge.
NEETU
SHASHANK
2019.03.25
01:32:06
-07'00'