Orissa High Court
Bishnu Mohan Mallik vs Dhruba Naik on 20 August, 1986
Equivalent citations: 1986(II)OLR566
JUDGMENT Agrawal, C.J.
1. The significant issue which emerges in this reference to a large Bench deserves precise formulation as follows :
"Whether an issue of jurisdiction decided by the trial Court can be re-opened in the executing Court, or it will be hit by the principles of res judicata ?"
2. This revision application by the decree holder is directed against the order of the executing Court allowing the objection of the judgment-debtor that the decree in question is a nullity and thus inexecutable.
3. The short facts are that the plaintiff filed a Title Suit for recovery of possession of certain lands with mesne profits in the Court of the Munsif, Bhubaneswar. A Notification Under Section 3(2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (Orissa Act 21 of 1972) (for short, 'the Act') in respect of the mouza in question had already been published in the meantime. The defendant raised an issue also regarding the maintainability of the suit in view of Section 51 of the Act which reads as follows :
"51. Bar of jurisdiction of Civil Courts_ Notwithstanding anything contained in any other law for the time being In force, but subject to the provisions contained in Clause (3) of Section 4 and Sub-section (1) of Section 7- (1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and (2) no Civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide".
According to Section 4(4) of the Act which deals with the effect of the notification Under Section 3-
"every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending stand abated :
Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard:
Provided further that on the issue of a notification under Sub-section (1) of Section 5 in respect of the said area or part thereof-
(a) every order passed by the Court under Clause (4) in relation to the lands situate in such area or part thereof, as the case may be, shall stand vacated and
(b) all such suits and proceedings as are referred to in Clause(3) or Clause (4)which relate to lands : (sic)duate in such area or part thereof, as the case may be, shall be proceeded with and disposed of in accordance with the law as if they had never abated:
Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right or interest which formed the subject-matter of the said suit or proceeding, before the proper consolidation authority in accordance with the provisions of Ms Act of the rules made the reunder."
4. The trial Court answered the issue of maintainability of the suit in favour of the plaintiff in these words:
"Issue Mo. 7 : Not pressed. The defendant has also not filed any notification under the Consolidation of Holdings Act regarding the pendency of any consolidation proceeding in respect of the suit land. So, it cannot be said that the suit is not maintainable Under Section 51, Consolidation of Holdings Act."
The suit was ultimately decreed, and no appeal was filed. When the decree was put to execution, the defendant-judgment-debtor filed an objection Under Section 47 of the Code on the plea that in view of the bar created by Section 4(4) of the Act, the trial Court had ceased to have jurisdiction over the subject-matter of the suit and therefore the decree amounted to have been passed by a Court having no jurisdiction over the subject-matter of the suit and thus the decree was a nullity. The executing Court accepted the above objection of the judgment-debtor and held that the decree was inexecutable.
5. It appears that the Notification Under Section 3(2) of the Act was issued about two years before the filing of the suit, but the defendant never produced it in the trial Court, nor did he take steps in the direction for the passing of an order of statement of the suit as provided Under Section 4(4) of the Act.
6. I find that the observation made in the order of reference made by the learned Single Judge that the question that a suit does not automatically abate on the issuance of the Notification Under Section 3 of the Act was conceded before him. For ceasing its jurisdiction, the Civil Court has to declare and pass a judicial order to the effect that the action before it has abated. Although the legal proposition has been conceded by the judgment-debtor as indicated above, nonetheless, I find an authority also in support of the proposition in the case of Kali Devi v. Khub Lal Mahato (1962 Bihar Bar Council Journal 118) where the question of abatement of suits and proceedings under parallel provisions of a similar Act of that State came up for consideration. A similar view has also been taken in Krushna Chandra Nayak @ Mohanty v. Nisamani Bewa 1986 (1) OLR 483.
Thus, apart from the fact that the Civil Court after entertaining the suit had proceeded with the adjudication, it also gave a decision on the question of maintainability of the suit and held against the defendant. It is in these circumstances that the question formulated by me in the beginning has arisen for consideration.
7. On behalf of the petitioner-decree-holder it was contended that the issue of jurisdiction having been raised and. decided by the trial Court, even assuming for the sake of argument that the said decision was erroneous in law, the correctness of the same could not be challenged in the executing Court, and the executing Court being bound by the decree could not re-open that question.
On the other hand, on behalf of the opposite party-judgment-debtor it was submitted that the bar of jurisdiction of the Civil Court under the Act with a non obstante clause contained in Section 51 of the Act created a lack of inherent jurisdiction for the Civil Court for the time being in force, and, therefore, by a wrong decision in the matter of maintainability of the suit, the Civil Court could not usurp the jurisdiction which was otherwise ousted. The executing Court was fully justified in examining this question and thus it has not committed any error of jurisdiction.
8. The general principle, that the validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was Jacking in 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 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, is well-settled and undisputable. (See AIR 1962 S. C. 199; Hira Lal Patni v. Sri Kali Nath).
It may well be that in view of the bar created by Section 51 read with Section 4(4) of the Act, the jurisdiction of the Civil Court was ousted but the ouster of jurisdiction was not automatic, and as the scheme of the Act also suggests, an order has to be passed by the Court in this regard.
9. Now let us consider some cases where the parties joined issue regarding the maintainability of the action in the Civil Court and the matter was decided and then the same question was agitated in the executing Court.
In Bikram Singh and Ors. v. The State of U. P. and Ors. AIR 1970 All. 354 (FB), a case arising out of the U. P. Consolidation of Holdings Act containing analogous provisions, during the pendency of the civil appeal, a similar notification was issued. The fact of publication of such notification was also brought to the notice of the Court, and the appellate Court held that the bar did not apply to the facts of the case and decided the appeal which decision became final. It was held that the Civil Court has power to decide the question of its own jurisdiction. The resumption of jurisdiction by erroneous decision of jurisdictional facts can be questioned in a revision before a higher Court and when the matter had already been finally disposed of between the parties by a competent Court, that decision has to be accepted by the Consolidation authorities.
A similar view has been taken by a Division Bench of the Patna High Court in Chintamani Saran Math Sah Deo v. Syed Zahiruddin and Ors. (AIR 1956 Patna 57), namely :
"But a case where the question whether or not a particular land constituted rayati holding was directly and substantially in issue and was finally determined by the Court in the presence of the parties stands on a different footing altogether. In all such cases, when the matter has been once decided finally by the Court that certain land is a rayati holding, it is not open to the executing Court to go behind the decree and re-agitate the same questions, because it is clearly barred by the principles of ren judicata Under Section 11, Civil Procedure Code. There is nothing in Section 47 of the Chota Nagpur Tenancy Act to empower an executing Court to reconsider afresh the nature and the character of the land to be sold, not with standing the fact that this question had been specifically raised and decided by the Court which passed the decree...... there is an end of the matter, and Section 47 does not come into play at all."
To the same effect is the view of a learned Judge of the Delhi High Court in Ram Swarup v. Shrimati Asharti Devi, ILR (1979) 1 Delhi 388. There, an eviction suit was filed by the landlord in the Civil Court in spite of the bar created by the Slums Areas (Improvements and Clearance) Act, 1956 for instituting a suit. The tenant had raised the question in the suit as her defence, but that was decided against her by the trial Court. The appellate Court dismissed her appeal and the appeal in the High Court also abated. The matter was again tried to be adjudicated in the executing Court, and it was held that a wrong decision is as much binding on the parties as the right one and may be superseded by appeals to higher tribunals or other proceeding like review as the law provides.
10. To conclude the citations, there is a direct authority of this Court on the point in favour of the petitioner, namely, AIR 1969 Ori., 21. (Prahalad Dora v. The State of Orissa & others). In this case, the defendant joined issue with the plaintiff regarding the maintainability of the suit in the Civil Court and lost, and it was clearly observed that the question already decided in a suit cannot be allowed to be raised inter partes in a subsequent litigation.
There may be an exception to this well-accepted principle, e. g. where a Court with limi'ed jurisdiction, such as an Industrial Tribunal which has no power to decide a jurisdictional fact, but wrongly holds or assumes that such facts existed and passes an order in exercise of such assumed jurisdiction, the order cannot operate as res judicata being void for want of jurisdiction because want of jurisdiction in such a case is 'aparant' But determination of question of title is generally the functions of the Civil Court and therefore in such cases the party is debarred from raising the same questions over and over again. No decision taking a contrary view in the matter was brought to our notice by the learned Advocate for: the opposite party.
The Full Bench of the Allahabad High Court in Bikram Singh's case (supra), while considering the scope of Section 5 of the U. P. Act, which is in pari materia with the Orissa Act, observed that the legislature did not take away the jurisdiction of the Civil Court completely. It merely directed stay of the proceedings to avoid conflict of decisions by two competent authorities on one and the same point between the same parties. After the publication of the Notification Under Section 4 of the said Act, the stay of the proceedings as provided Under Section 5 cannot be automatic for one more reason. The Court before which the suit or the appeal or the proceedings are pending Will have to decide whether or not the provisions of Section 5 of the Act would apply to the case. All that the law requires is that the proceedings before it should be stayed, and after the matter is decided by the Consolidation authorities, the decision is to be communicated to the Court who shall proceed with the proceeding or the suit, as the case may be. Thereafter, it is clearly laid down that the effect of Section 5(b)(i) of the Act was not to destroy of take away the jurisdiction of the Court before whom a suit or an appeal was pending. It remained seized of the case throughout and ultimately it had to pass a judgment or order or decree in a case. Therefore, it cannot be said that a decree or order of judgment passed by such a Court would be a nullity even though it alone had the jurisdiction to pass the order or the decree or the judgment. The Full Bench referred with approval the view of an earlier Division Bench in Lakhpat Singh v. Dal Singh (1964 Allahabad Law Journal 1949) that if an appeal is decided on merits in ignorance of the fact that a Notification Under Section 4 of the Act has been issued, the judgment would not be a nullity but it would be a case of the Court acting with material irregularity in the exercise of its jurisdiction.
10. From the discussion and authorities noticed above, it becomes clear that the Civil Court being a Court having the initial and otherwise inherent jurisdiction over the subject-matter to entertain the suit under the Code of Civil Procedure which has been ousted by a subsequent legislation, a special statute no doubt created a Court of pro tanto jurisdiction, but nonetheless, if the Civil Court decides rightly or wrongly that it is competent to maintain the suit and ultimately passes a decree, then the executing Court being a Court of co-ordinate jurisdiction cannot question the legality of that decision on an objection Under Section 47, C.P.C., as that would obviously amount to going behind the decree.
On the above discussions, I am led to the conclusion that the executing Court has committed a serious error of jurisdiction in holding that the decree under execution was a nullity.
11. Before, however, parting with this case, yet another argument that was advanced on behalf of the judgment-debtor has to be noticed.
It was submitted that in any view of the matter, the decree would not be executed as in the meantime the revenue authorities have already closed the ceiling proceeding so much so that Chaks have already been formed Under Section 31 of the Act and distributed. It was therefore submitted that at this stage it is not possible to going back to the decree stage with respect to the suit land.
This plea of the judgment-debtor, in my opinion, has got two simple answers, namely. (1) this question does not arise from the order under revision and therefore the facts which have been stated before us cannot be properly examined, and (2) even assuming that the facts stated are correct, the decree of the Civil Court being binding on the judgment-debtor as well as on the revenue Courts, it could not be rendered nugatory or unenforceable at the instance of the judgment-debtor by keeping the revenue Courts uniformed of this fact and obtaining the orders in his favour. Accordingly, suct orders as are based on mistake of facts as also of law cannot supersede the binding force of the Civil Court decree. Otherwise, the whole theory of res judicata will become meaning-less and deprive the successful party to enjoy the benefits of the decision of a competent Civil Court in his favour by the act of an unscrupulous litigant. For this obvious proposition, no authority need be cited.
12. This application must therefore succeed, and it is accordingly allowed, but in the circumstances, i leave the parties to bear their own costs.
S.C. Mohapatra, J.
13. I agree.