1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.414 OF 2009 Tasubai Devasthan Kalhad Trust and Ors. .... Petitioners V/s. Narayan Raghu Gurav and Ors. ..... Respondents Ms.Jai V. Kanade, Advocate, for the petitioners. Mr.S.M.Gorwadkar, for respondent No.1. CORAM :S.C.DHARMADHIKARI, J. DATE : 26TH MARCH, 2010 P.C. 1. Heard Ms.Jai Kanade, appearing on behalf of the petitioners and Mr. S.M.Gorwadkar, appearing on behalf of respondent No. 1, who was the contesting respondent. It is stated that other respondents are duly served. 2. The challenge in this revision application is to an order passed by the Executing Court, dismissing the application preferred by the present petitioners and particularly, the objection of original judgment debtor No.6. By the order under challenge delivered on 21-11-2008, an application (Exh.18) has been rejected. Therein, the Executing Court held that the decree in question is not in nullity. 3. The petitioners are the original defendant No.6 to a suit for specific performance, which had been filed in the trial court by original 2 plaintiff/respondent No.1. Original defendant Nos.2 to 5 are the respondent Nos.2 to 5 to the present revision application. It is common ground that Regular Civil Suit No.78 of 1993 was filed claiming decree for specific performance of an agreement for sale dated 22-01-1972 and 02-06-1992. That suit came to be decreed ex-parte by the learned Civil Judge, Junior Division, Vadgaon Maval, by his judgment and decree dated 24-06-2004. 4. The original defendant No.1 to the suit was one ‘Ramchandra Sahadu Gurav’. He expired on 04-05-2000. 5. The objection of the petitioner/original defendant No.6 to the execution of the subject decree was that it is a nullity. That decree was passed when the original plaintiff had knowledge of the death of the deceased defendant No.1 and he did not take any steps to bring the legal heirs of the deceased on record. In such circumstances, when the decree was for specific performance of an agreement in question and in further circumstance, when the deceased and one Rakhmabai Vithal Gurav had agreed to sell a land admeasuring 2 Hectors 83 Ares, more particularly described in the agreement for sale dated 22-01-1972, then when part of the property has been sold by the original defendant No.5 by the further agreement dated 02-06-1992, that conflicting decrees could not have been passed in the same suit. 3 6. In other words, even if according to the petitioners, the original defendant Nos.1 to 5 were the only heirs and legal representatives of the deceased Sahadu and Rakhmabai and therefore, the agreement for sale was binding on them, the very defendant No.5 to this suit for specific performance, had agreed to sell his share of the property by the further agreement dated 02-06-1992 to the defendant No.6, who is judgment debtor No.6. In such circumstance, once the agreements were of this nature, the court below could not have rejected the objection of the petitioners. 7. Ms.Kanade on behalf of the petitioners, invited my attention to these factual aspects and contended that joint decree for specific performance having been passed against defendant No.1, who was dead at the relevant time, the entire decree of the trial Court was a nullity. She further submits that decree against a dead person was a nullity and the executing court has erroneously held that it is not so. She submits that merely because the suit proceeded ex-parte or for want of written statement, that does not exempt the original plaintiff from making an application in terms of Order XXII Rule 4(4) of the Code of Civil Procedure. In this situation and when there is nothing on record to indicate that such an application was made or exemption contemplated was granted, then the decree was nullity and could not have been 4 enforced and executed. Further, the executing Court erroneously held that there was a mandatory duty cast on the pleader to bring the fact of death to the notice of the Court under Order XXII Rule 10(A) of C.P.C. In this case admittedly, the death was during the pendency of the suit and the plaintiff had knowledge of his death. He had attended funeral of the deceased defendant No.1. 8. Learned counsel for the petitioners further contended that the third ground of rejection was that the estate of the deceased was sufficiently represented, is further incorrect because the deceased defendant No.1 was not a party to the original agreement, of which specific performance was sought. The learned Judge presiding over the Executing Court, according to Ms.Kanade, overlooked this fact and the objection could not have been rejected. She has invited my attention to all the relevant legal provisions and has contended that once the death of the original defendant No.1, resulted in the suit coming to an end by abatement, as far as defendant No.1, then the suit could not have been decreed against rest of the defendants. She places reliance upon the decision of the Hon’ble Supreme Court reported in (1962) 2 SCR 636, State of Punjab V/s. Nathuram. She submits that the principles laid down therein are attracted squarely to this case. She submits that a decree being joint in nature, it could not have been enforced and executed 5 against surviving defendants as it is ineffective in law. She submits that estate in this case was not sufficiently represented, as erroneously held. One Sahindra Dhanwat is the only heir and legal representative of the deceased defendant. Defendant Nos.2 to 5 are not the heirs of the deceased defendant No.1 as per the Rule of Succession. In these circumstances and when rights of these parties under the Hindu Succession Act, being clear, the finding that the said Dhanwat was not the heir and legal representative is incorrect. She has invited my attention to the order of the trial Court and has contended that the objection raised did not necessitate a detailed inquiry, but the decree on the face of it was a nullity. All this could have been considered by looking at the decree itself and did not warrant any elaborate or prolonged inquiry. For these reasons, she submits that the order under challenge suffers from a patent error of jurisdiction and is vitiated by a material irregularity, resulting in manifesting injustice, so as to call for interference of this Court’s jurisdiction under Section 115 of the C.P.C. She places reliance upon the following decisions : - 1. (2004) 1 SCC 287 (Rafique Bibi V/s. Sayed Waliuddin) 2. AIR 2004 SC 4377 (Balwant N. Wiswamitra V/s. Yadav Sadashiv Mule) 3. Notice No.2074 of 2007 in Spl. C.S.No.48 of 1991 6 (Investwell V/s. Shri Ramniklal Gandhi) 4. (1962) 2 SCR 747 (Hira Lal Patni V/s. Sri Kali Nath) 5. (2001) 6 SCC 534 (Dhaurandhar Prasad Singh V/s. Jai Prakash University). 6. (1993) 2 SCC 507 (Chiranjilal S. Goenka V/s. Jasjit Singh) 7. (1996) 8 SCC 323 (Bakshish Singh V/s. Arjan Singh) 8. (2007) 11 SCC 285 (Bhag Mal V/s. Munshi ) 9. (2001) 5 SCC 570 (Amba Bai V/s. Gopal ) 10.(1998) 5 SCC 567 (Ashok Transport Agency V/s. Awadesh Kumar) 11. AIR 1962 SC 89 (State of Punbaj V/s. Nathu Ram) 12. AIR 1963 SC 1901 (Rameshwar Prasad V/s. Shyam Beharilal ) 13. (1973) 2 SCC 9 (Ramagya Prasad Gupta V/s. Murli Prasad ) 14. (1975) 1 SCC 212 Harihar Prasad Singh V/s. Balmiki Prasad ) 15. AIR 1963 SC 553 (Ram Sarup V/s. Munshi & Ors. ) 16. (2003) 10 SCC 691 (Mithailal V/s. Annabai ) 17. (2008) 8 SCC 521 (Jaladi Saguna V/s. Satya Sai Central Trust) 18. (1984) 1 SCC 121 (Gangadhar V/s. Raj Kumar ) 19. AIR 1976 Cal. 337 (Chhotalal V/s. Dilip Kumar) 20. AIR 1985 Pat. 35 ( Manni Devi V/s. Ramayan Singh ) 9. On the other hand, Mr.Gorwadkar appearing on behalf of the contesting respondents, submits that the decree in this case was not in nullity, as contended, the executing Court was right in its conclusion that the objection raised by the petitioners is merely to prolong the execution of the decree. The decree is passed in a suit for specific performance. 7 The deceased defendant was not the only defendant to the suit. There were others including the present petitioners who were impleaded as a party defendant. There were remedies available in law to challenge the Decree. None of the defendants appeared or contested the suit by filing the written statement. In such circumstances, when death of defendant No.1, who did not file written statement, does not automatically make the decree a nullity on account of Order XXII Rule 4(4) of the Code of Civil Procedure, 1908, then at best, non-compliance with this provision, would make the decree erroneous or illegal, but certainly not a nullity. Distinction between a decree which is a nullity and which is illegal or erroneous is well settled and therefore, this Court should not interfere with the ultimate conclusion of the executing Court. He submits that substantial justice has been done and even if the Court finds the order to be erroneous on some count, that itself is no ground to interfere in the revisional jurisdiction. Hence, the application be dismissed. 10. With the assistance of the learned Advocates appearing for the petitioners and respondents, I have perused the petition and all its accompaniments including the impugned judgment. I have also perused relevant statutory provisions and some of the decisions brought to my notice by Ms.Kanade. 11 On earlier occasions, I had to consider such an objection to the 8 execution and enforceability of the decree. The decree was termed ‘nullity’ in an earlier matter as well. In one of the decisions recently delivered by me on 05-02-2009 in Notice of Motion No.2074 of 2007 in Special Civil Suit No.48 of 1991, the objection precisely of the nature raised in this matter was considered by me. Pointing out the difference between a decree being vitiated for want of compliance with the procedural provisions and a nullity, this is what I had observed : - 9. Repeatedly, the Hon’ble Supreme Court has been emphasising the fact that a decree cannot be termed as nullity merely because the Court which passed and pronounced the judgment and decree has committed an illegality or has breached or overlooked some procedural provisions. That is not the matter which the Executing Court can take cognizance of and parties must challenge the judgment and decree in Appeal or other permissible legal modes on the ground that it is vitiated for the reasons aforementioned. If the parties do not challenge the judgment and decree and seek appropriate declaration, then, the executing Court cannot be approached and called upon to decide the issue that the decree is illegal. The principle is that an erroneous and illegal decree can always be set aside by a procedure known to law. An illegal or an erroneous decree and judgment cannot be set aside by entertaining an objection in execution proceedings, for such a violation does not vitiate the judgment and decree to such an extent so as to term it as a nullity. A decree is null and void and incapable of execution and enforcement if it is pronounced by a Court lacking inherent jurisdiction because this goes at the root of the matter and strikes at the very power and authority of 9 the Court to pass it. 10. Such is not the case here. The judgment debtor No.1 was absent throughout the proceedings. He was served with the writ of summons but chose not to contest the suit. He did not file any written statement. He did not take any part in the proceedings. Until the Court closed the evidence and reserved the matter for arguments and even thereafter till the judgment was delivered, he was absent. There was no question of the Court having knowledge of his death. In these circumstances, the Court proceeded and pronounced the judgment and decree. At the most, it could be termed to be something which may give rise to an argument that the Court was oblivious of Order XXII Rule 4(4) of C.P.C. This is not a case where the Court lacked inherent jurisdiction. A Court having jurisdiction to entertain and try a suit or proceeding may try and decide it erroneously. Such an erroneous decision cannot be said to be a nullity. 11. In this behalf, suffice it to refer to the latest decision in Balavant N. Viswamitra and others vs. Yada Sad Mule (deceased by L.Rs.) and others reported in AIR 2004 SC 4377. His Lordship Justice C.K.Thakker, speaking for the Bench, observed thus :- "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. 15. Before more than a century, in MalkarjunBin Shidramappa Pasare . Narhari Bin Shivappa & Anr. (1900) 27 1A 216: ILR 25 Bom 337 (PC), the executing Court wrongly held that a particular person represented the estate of the deceased judgment-debtor and put the property for sale in execution. Drawing the 10 distinction between absence of jurisdiction and wrong exercise thereof, the Privy Council observed : "He contended that he was not the right person, but the Court, having received his protest, decided that he was the right person, and so proceeded with the execution. In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision however wrong, cannot be disturbed." His Lordship has referred to, with advantage, all earlier decisions on the field. The decision of another Bench of the Supreme Court in Rafique Bibi (D) by L.Rs. Vs. Sayed Waliuddin (D) by L.Rs. and others reported in AIR 2003 SC 3789 has also been referred and the principles laid down therein have been reiterated. With respect, these principles are binding upon me. In the earlier decision in Rafique Bibi (supra) the Supreme Court has observed in paras 6 and 8 as under :- "6. What is ‘void’ has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such nullity based on want of jurisdiction; else the normal rule that an executing Court cannot go behind the decree must prevail." "8. A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in 11 accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure cannot be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings." 12. I did nothing but to reproduce some of the pertinent observations of the Hon’ble Supreme Court in the decisions that were noticed by me in the order. The Supreme Court had very clearly held that “a decree may be erroneous or illegal on account of some irregularity or non-compliance with the procedural provisions, but such a decree can be set aside only by recourse to proceedings permissible in law. It is none of the duty of the executing court to question a decree on the ground of alleged illegality or irregularity. That would amount to the executing Court exercising Jurisdiction as an appellate or revisional court. Precisely, such an inquiry must be avoided by the executing Court or else, fruits of the decree can never be enjoyed by successful parties. All the more, when parties have never tried to contest the matter and remained absent or did not defend themselves, it is not open to them to then turn around and question the proceedings. That the executing court cannot go behind the 12 decree, is to well settled to be reiterated. In all these matters, what I have noticed is that the executing court is called upon to decide whether the deceased defendant died during the pendency of the proceedings, that the plaintiff had full knowledge of the death, that the plaintiff had an opportunity to proceed by seeking an exemption under Order XXII Rule 4(4) of C.P.C., that the deceased defendant had remained ex-parte or not, why under sub-Rule (4) an exemption was not sought till the conclusion of the proceedings. That would entail the Court making an inquiry which is not contemplated in law. That would amount to reopening the proceedings which culminated in the decree. 13. In the instant case, it is not disputed before me that the original plaintiff had filed a suit against six defendants. Petitioner was defendant No.6. Like other defendants, defendant No.6, petitioners before me, also remained ex-parte, despite being served with the suit summons; it did not participate in the proceedings. It allows the decree to be passed and when it was put in execution, has raised an objection that the decree is nullity. It is undisputed that if such was a factual aspect, then the remedy of appeal was always available to the present petitioners/defendant No.6, such an appeal was never preferred and therefore, the decree was allowed to become final. Moreover, apart from the deceased defendant No.1, there were other defendants to the suit and 13 if the trial court proceeds on the basis that the estate of the deceased is sufficiently represented, then, whether it was not so represented or not, is not a matter which can be looked into at the stage of execution and that too, at the instance of the petitioner/defendant No.6. Defendant Nos.2 to 5 did not raise any such objection to the enforceability of the decree. In such circumstances, on this short ground alone, I do not find that the objection raised to the execution of the decree on the ground of nullity was valid. Be that as it may, when there were other defendants to the suit, the estate was sufficiently represented in the opinion of the trial court, then, at the instance of defendant No.6, who remained absent, an elaborate inquiry into the procedure adopted by the trial court was not otherwise, permissible at the stage at which the matter is today. In other words, the executing court could not have been called upon to conduct such an inquiry. That the executing court conducted it and yet came to the conclusion that the decree is not a nullity, is something which would not warrant going into the correctness of these reasons once again. Suffice it to note that once the conclusion reached is that the decree is not a nullity and that conclusion is sustainable even otherwise, then substantial justice demands that I do not entertain this revision application. 14. Having concluded, that the decree in question is not a nullity and therefore, could not have been resisted on that ground by the 14 petitioners/defendant No.6, I proceed to dismiss this revision application. It is accordingly dismissed. 15. All the decisions brought to my notice and the principles laid down therein would warrant a decision on questions which can be decided in an appropriate case. In the instant matter, suffice it to notice the decision in Hira Lal Patni V/s. Sri Kali Nath (Supra) which was relied upon very vehemently before me. That was rendered in the circumstances when the Supreme Court found that the appellant before it was desirous of acquiring shares in certain mills. Respondent’s services were engaged to negotiate the deals on certain terms. The bargain was concluded. The appellant before the Supreme Court together with another person purchased the interest of one Major A.U.John by an agreement for sale. Thereupon, the respondent instituted a suit in the Original Side of this Court for recovery of his commission amounting to Rs.One Lakh. The suit was referred to arbitration of one Mr.W.E.Pereira, who was the administrator of the estate of the deceased. One of the defences taken by the appellant before the Supreme Court, as defendant in the action, was that the suit was filed without obtaining leave under Clause XII of the Letters Patent. The Supreme Court then referred to this objection and ultimately found that the decree was transferred to the Court at Agra for execution. Therein the objection was raised to the execution of decree on 15 number of grounds and one of which was the jurisdiction of the Bombay High Court to entertain the suit and to make the award the decree of Court. That objection is noted in Page No.31 and thereafter, it is on the ground of want of territorial jurisdiction of the Court that the tests were laid down by the Supreme Court. That was with reference to the earlier decision of the Privy Council. 16. While it is true that validity of the decree can be challenged in execution on the ground that the defendant was dead at the time the suit had been instituted or decree passed which would make the Court lacking his jurisdiction over parties to the matter making its decree nullity, yet, it is clear from the decision of the Supreme Court that while dismissing the appeal, the Court held that the Bombay High Court was not incompetent to entertain the suit as objected by the judgment debtor. The test laid down by the Supreme Court would apply, but their application must be considered in the backdrop of every peculiar case and that is how the subsequent decisions of the Supreme Court have been rendered. The Court having no cognizance to take seisin of the subject matter of the suit is an objection striking at the root and was held to be paramount. While in the case of other objections, the Supreme Court may take a different view as noticed in Rafique Bibi (dead) by LRs (Supra). Therefore, it is not as if the Court below in the instant case has overlooked this test and 16 misapplied it. The objection is rightly rejected and requires no interference by me. In the result, the revision application fails and it is dismissed. 17. At this stage, a request is made that the ad-interim order granted by this Court be continued for some time so as to enable the petitioner to challenge this order in higher court or adopt appropriate proceedings. Request is opposed by Advocate Shri Gorwadkar. Considering the fact that the ad-interim order was in force for sometime, interest of justice would be served, if the same is continued for a period of six weeks from today. ( S.C.DHARMADHIKARI, J.)