IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST DAY OF DECEMBER 2011/10TH AGRAHAYANA 1933 CRP.No. 525 of 2011 ( ) =================== PETITIONER/JUDGMENT DEBTOR ====================================== SHRIMAD RAGHAVENDRAN THIRTHA SWAMI SANYASI, AGED 41 YEARS MATHADHIPATHI SHRI KASHI MATH SAMSTHAN PRESENTLY CAMPING AT THIRUPATHI ANDHRA PRADESH. BY ADV.SRI.T.KRISHNAN UNNI (SR.) SRI.G.RAJAGOPAL RESPONDENT/DECREE HOLDER =========================== SHRIMAD SUDHEENDRA THEERTHA SWAMI AGED 86 YEARS, MADATHIPATHI OF SREE KASHI MATH SAMSTHAN REPRESENTED BY HIS POWER OF ATTORNEY HOLDER G.G.PRABHU, NO.1, MANUSMRITHI RELIEF ROAD DAULAT NAGAR, SANTHACRUZ (W) MUMBAI 400 054. BY ADV. SRI.R.LAKSHMI NARAYAN SRI.R.D.SHENOY (SR.) THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01-12-2011 ALONG WITH OPC NO. 3837/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD THOMAS P. JOSEPH, J. ---------------------------------------- C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 --------------------------------------- Dated this 01st day of December, 2011 ORDER The following questions are raised for a decision: (i) Whether, it is within the power of the Court to which a decree is sent for execution (for short, “the Transferee Executing Court”) to entertain and decide a challenge to the executability of the decree on the ground that the Court which passed the decree had no jurisdiction to do so? (ii) Assuming that the Transferee Executing Court has the jurisdiction to entertain and decide such a plea, in what circumstance could such Court entertain that plea? (iii) Whether the Court which passed the decree in this case (for short, “the Transferor Executing Court”) had the jurisdiction to pass the decree? (iv) Whether the decision of the Transferee Executing Court issuing warrant of arrest to the petitioner/judgment debtor is sustainable? 2. Short facts necessary for a decision of the above questions are: Petitioner (hereinafter referred as the judgment debtor) C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 2 :- instituted the suit in the Court of learned Additional District Judge, Tirupathi praying inter alia, for a declaration that he is the Madathipathi of Kasi Matt Samsthan. Respondent/decree holder (hereinafter referred as the decree holder) filed written statement and counter claim claiming that he is the Madathipathi of Kasi Matt Samsthan, that under certain circumstances the deities, paraphernalias and insignia were entrusted to the judgment debtor for custody, that on demand judgment debtor has not returned the said articles and hence, decree holder is entitled to a mandatory injunction to get those articles returned to him. Learned Additional District Judge dismissed the suit but granted a decree in the counter claim and directed the judgment debtor to return the deities, paraphernalias and insignia to the decree holder. Judgment debtor has challenged that judgment and decree in the suit and counter claim in the High Court of Andra Pradesh, in A.S.Nos.90 and 91 of 2009 and those appeals are pending. In the meantime the decree holder filed petition to execute the decree on the counter claim in the Court of learned Additional District Judge, Tirupathi. Though, judgment debtor had sought a stay of execution of the decree on the counter claim in A.S.Nos.90 and 91 of 2009, the High Court of Andra Pradesh declined to grant stay. That order was confirmed by the Supreme C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 3 :- Court. In E.P.No.18 of 2009 filed by the respondent before learned Additional District Judge, Tirupathi (for execution of the decree on the counter claim) notice could not be served on the judgment debtor. The decree holder filed application under Sec.151 of the Code of Civil Procedure (for short, “the Code”) in the appeals pending in the High Court of Andra Pradesh seeking a direction to the judgment debtor to return the articles to him. The High Court declined to pass any order in that way but directed that judgment debtor could appear in E.P.No.18 of 2009 pending before learned Additional District Judge, Tirupathi on the date mentioned in the order, prefer objection, if any to the execution petition and that in case judgment debtor did not make any such appearance before learned Additional District Judge, it will be taken that judgment debtor has waived his objection to the execution petition. Judgment debtor appeared through his representative before learned Additional District Judge, Tirupathi and raised a preliminary objection that as he is camping at Elamakkara, in Ernakulam District, learned Additional District Judge, Tirupathi has no jurisdiction to execute the decree on the counter claim. Pursuant to that objection decree holder withdrew E.P.No.18 of 2009 and filed application before learned Additional District Judge, Tirupathi to transmit the decree C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 4 :- certificate to the Court of learned District Judge, Ernakulam for execution against judgment debtor. Accordingly the decree certificate was transmitted to the District Court, Ernakulam where decree holder filed E.P.No.77 of 2001. Learned District Judge made over that execution petition to the Court of learned Additional District Judge, Ernakulam. Judgment debtor appeared before learned Additional District Judge, Ernakulam and preferred his objection contending that the said Court has no jurisdiction to execute the decree and that at any rate since he is camping at Tirupathi, only the Court at Tirupathi could execute the decree. Those objections were overruled by learned District Judge as per order dated 19.08.2011. The said order was challenged in this Court in C.R.P.No.398 of 2011. This Court by order dated 05.11.2011 dismissed the civil revision holding that learned Additional District Judge, Ernakulam has the power to execute the decree. 3. In the order dated 19.08.2011 learned Additional District Judge, Ernakulam directed judgment debtor to return the articles to the decree holder within fifteen days from the date of order. Judgment debtor did not comply with the said order. Decree holder filed E.A.Nos.465 and 466 of 2011 (in E.P.No.167 of 2011). E.A.No.465 of 2011 was for a direction to the police C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 5 :- authorities to trace out the articles while in E.A.No.466 of 2011 decree holder claimed that since judgment debtor has not complied with the direction to return the articles as per order dated 19.08.2011, he is to be detained in the civil prison. To those applications, judgment debtor preferred objection. After this Court dismissed C.R.P.No.398 of 2011 judgment debtor filed additional objection contending that the decree sought to be executed against him is a nullity as the Court which passed that decree had no jurisdiction to pass it. Contention of judgment debtor is that the counter claim which is in the nature of a cross suit came within the scope of Sec.92(1) of the Code but the counter claim is made by only one person and that too, without obtaining leave of the Court which is a pre-condition for institution of a suit under Sec.92(1) of the Code. Judgment debtor contended that the decree passed by learned Additional District Judge is therefore without jurisdiction, is a nullity and hence not executable. Learned Additional District Judge, Ernakulam rejected the contention and allowed E.A.Nos.465 and 466 of 2011. Judgment debtor was directed to produce the articles in Court or hand over the same to the decree holder within 7 days from the date of order. In case judgment debtor failed to produce the said articles before Court or deliver the C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 6 :- same to the decree holder, warrant of arrest was to be issued to enforce the decree. The order dated 10.11.2011 is under challenge in this civil revision and original petition. 4. Point No.I Learned Senior Advocate for the decree holder, Sri.R.D.Shenai has contended that the objection judgment debtor has raised before learned Additional District Judge as to the jurisdiction of the transferor Court to pass the decree and its enforceability is not a matter which could be entertained or decided by the transferee executing court. Learned Senior Advocate has placed reliance on the decisions in S.A.Nathan Vs. S.R. Samson (AIR 1931 Rangoon 252), N.A.V.R.Chettyar Firm Vs. Maung Than Daing (AIR 1931 Rangoon 262), P.S.Ramamoorthy Sastry Vs. Selvar Paints and Varnish Works (Pvt). Ltd, Bombay-72 (AIR 1984 Madras 172) and Ramankutty Vs. Kali Nani (1986 KLT 54). According to the learned Senior Advocate, the power of transferee executing court is co-terminus with that of the transferor executing court only in executing the decree and a challenge to the jurisdiction of the Court which passed the decree is beyond the jurisdiction of the transferee executing court to entertain. It is contended that the C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 7 :- transferor executing court retains jurisdiction over the decree and its execution notwithstanding transfer of the decree as is evident from the various provisions of the Code and hence, if the judgment debtor has a challenge to the decree on the ground that the transferor court which passed it had no jurisdiction to do so, the objection has to be raised either in the transferor executing court or in the appeal arising from the judgment and decree of the said Court. 5. Learned Senior Advocate for the judgment debtor, Sri.T.Krishnanunni contends that a plea that the decree is a nullity for want of jurisdiction could be raised whenever and wherever the decree is sought to be enforced against the judgment debtor, be it in the same proceeding or even in a collateral proceeding. It is contended that if the decree is null and void, it is non est in the eye of law and that question could be raised wherever the decree is sought to be enforced against the judgment debtor. Reliance is placed on the decisions in Kiran Singh Vs. Chaman Paswan and Ors. (AIR 1954 SC 340), Jai Narain Ram Lundia Vs. Kedar Nath Khetan and Ors (AIR 1956 SC 359), Kammela Somasekhara Rao Vs. Kammela Seshagiri Rao (AIR 1960 AP 321), Sanwal Das Gupta Vs. Babubhai Bhawanji Jhaveri (AIR 1963 Punjab 395), The C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 8 :- Allahabad Bank Ltd Vs. Chaitram Ram Choudari and Ors. (AIR 1964 Madhya Pradesh 226), Sushil Kumar Mehta Vs. Gobind Ram Bohra (1990(1) SCC 193) and Smt. Isabella Johnson Vs. M.A Susai (AIR 1991 SC 993). Learned Senior Advocate contended that the fact that the counter claim is not instituted notwithstanding that it related to a public trust of religious character in accordance with Sec.92(1) of the Code rendered the decree passed by the learned Additional District Judge, Tirupathi null and void, being without jurisdiction. 6. Presently I am to consider whether an objection as to the executability of the decree on the ground that it is a nullity for the reason that the Court which passed it had no jurisdiction to do so is entertainable in the transferee executing court. In Kiran Singh Vs. Chaman Paswan and Ors. (supra), Sushil Kumar Mehta Vs. Gobind Ram Bohra (supra) and Smt. Isabella Johnson Vs. M.A Susai (supra) it is held that a decree passed without jurisdiction is a nullity and could be set up even in collateral proceeding. In the former of the said decisions, it is held that 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 a decree and that such a defect cannot be cured even by consent of C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 9 :- parties. The view taken in Sushil Kumar Mehta Vs. Gobind Ram Bohra (supra) is that in respect of nullity, no question of waiver or consent arises and that so far as plea of nullity is concerned, question of res judicata also does not arise. In Smt. Isabella Johnson Vs. M.A Susai (supra), it is held that the Court having no jurisdiction in law cannot be conferred with the jurisdiction by applying the principles of res judicata. 7. Now the question is whether objection regarding executability on the ground that the transferor executing court had no jurisdiction to pass the decree could be entertained and decided by the transferee executing court. To decide that question, it is necessary to refer to the relevant provisions of the Code of Civil Procedure 1882, 1908 and as amended by Act 104 of 1976 with effect from 01.02.1977. Code of Civil Procedure, 1882 Code of Civil Procedure, 1908 Sec.225: “The Court to which a decree is so sent shall cause such copies and certificate to be filed, without any further proof of the decree or order for execution, or of the copies thereof, or of the jurisdiction of the court which passed it, unless the former Court, for any special reasons to be recorded under the hand of the Judge, requires such proof. Order XXI, Rule 7: The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof. C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 10 :- Code of Civil Procedure, 1882 Code of Civil Procedure, 1908 Sec.223: A decree may be executed either by the Court which passed it or by the Court to which it is sent for execution under the provisions hereinafter contained. The Court which passed a decree may, on the application of the decree- holder, send it for execution to another Court,- (a) ........................ (b) ........................ (c) ....................... (d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court. The Court which passed a decree may of its own motion send it for execution to any Court subordinate thereto. The Court to which a decree is sent under this section for execution shall certify to the Court which passed it the fact of such execution, or, where the former Court fails to execute the same, the circumstances attending such failure........ Sec.39 (1) The Court which passed a decree may, on the application of the decree holder, send it for execution to another Court,- (a) ............................ (b) ............................ (c) ............................ (d) ............................ (2) ........................... C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 11 :- Code of Civil Procedure, 1882 Code of Civil Procedure, 1908 Sec.228: The Court executing a decree sent to it under this Chapter shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall b subject to the same rules in respect of appeal as if the decree had been passed by itself. Sec.42(i) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself. (Act 104 of 1976 incorporates Sub secs.2 to 4) Sec.233 Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment debtor might have enforced against the original decree holder. Sec.41 The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure. C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 12 :- Code of Civil Procedure, 1882 Code of Civil Procedure, 1908 Sec.239 The Court to which a decree has been sent for execution under this Chapter shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment debtor to apply to the Court by which the decree was made, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which migh have been made by such Court of first instance or appellate Court if execution had been issued thereby, or if application for execution had been made thereto: and, in case the property or person of the judgment debtor has been seized under an execution, the Court which issued the execution, may order the restitution or discharge of such property or person pending the result of the application for such order. Order XXI, Rule 6: The Court sending a decree for execution shall send- (a) a copy of the decree; (b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unexecuted; and (c) a copy of any order for the execution of the decree, or if no such order has been made, a certificate to that effect. C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 13 :- Code of Civil Procedure, 1882 Code of Civil Procedure, 1908 Sec.244: The following questions shall be determined by order of the Court executing a decree and not by separate suit: (a) ........... (b) ........... (c) any other 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 or to the stay of execution thereof. Sec.47: (1) 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. 8. As the Code now stands after the CPC (Amendment Act 104 of 1976) Sec.39 deals with transfer of decree and states that the Court which passed the decree may, on the application of the decree holder, sent it for execution to another Court (of competent jurisdiction). Sec.40 deals with transfer of decree to a Court in another State and states that where the decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State. Sec.41 requires the transferee Court to which the decree is sent for execution to certify to the Court which passed it, C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 14 :- “the fact of such execution, or where the former fails to execute the same the circumstances attending such failure”. Sec.42(1) says that the Court executing a decree sent to it shall have “the same power in executing such decree as if it had been passed by itself”. 9. Order XXI, Rule 6 of the Code deals with the procedure where the Court decides that its own decree shall be executed by another Court. Rule 7 of Order XXI says that a Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court for any special reason said to be recorded under the hand of the Judge requires such proof”. 10. While the Code of 1908 was enacted and the provision in Sec.225 of the Code of 1882 was incorporated in that Code in Order XXI Rule 7, there was a substantial change made in that, the expression “or of the jurisdiction of the Court which passed it” occurring in Sec.225 of the Code of 1882 was deleted and the rest of the provisions in Sec.225 was incorporated in Rule 7 of Order XXI of the Code of 1908 which is retained even after Act 104 of 1976. It is said that in Sec.225 of the Code of 1882 the expression “or of the jurisdiction of the Court which passed it” C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 15 :- was provided in recognition of the right of transferee executing court to enquire into the jurisdiction of the Court which passed the decree. In Haji Moosa Haji Ammed Vs. Perumanand Nursey (1891) 15 ILR Bombay 216) Farran, J held at page 219, “Even in the case of our own Courts, the Code recognised in Sec.225 the right of the executing court to enquire into the jurisdiction of the Court which passed the decree....” 11. The Bombay High Court in Bhagwantappa Vs. Viswanath (28 Bombay 378 (1904)), referring to the above said expression in Sec.225 of the Code of 1882, held; “looking at Secs.224 and 225 of the Code of Civil Procedure which bear on this point, we find that the Court to which a decree is sent for execution has jurisdiction to decide the preliminary question whether the decree sent to it for execution was passed with jurisdiction or not. Sec.225 points out the conditions which must be fulfilled to the satisfaction of the Court to which the decree is sent for execution before it can exercise the functions of an executing court......”. The Bombay High Court in the above decisions indicated that presence of the expression “or of the jurisdiction of the Court” in Sec.225 of the Code of 1882 conferred power on the transferee executing court to entertain an objection regarding jurisdiction of C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 16 :- the Court which passed the decree to do so. It is relevant to note the observation made by West, J in Chogalal Vs. Trueman (1883)7 Bombay 481 at page 483) which is as follows: “The intention of the Civil Procedure Code as shown by Secs.239 and 242, is manifestly that a Court to which a decree is sent for execution by another under the same Government and the same law of procedure shall not take on itself the trial of whether the Court which passed the decree had jurisdiction to make it or not. In case of doubt the Court where execution is sought may adjourn the execution in order to enable the party interested to make an application to the Court passing the decree. Thence the appellant may, of course, proceed by appeal, if dissatisfied, in the ascending scale of Courts until he reaches the highest in the Province in which the decree was made. It is intended that the decree of this Court, or of the lower Court at which proceedings in the suit have ceased, shall be conclusive. A contrary rule would virtually subject the decrees of the civil Courts to revision and reversal by superior Courts (or even equal or inferior ones to which they are not subordinate. When the time allowed for an application, if any, has elapsed, the court to which the decree has been sent must accept it as a valid one without going into further inquiries, or overruling the C.R.P.No.525 of 2011 and O.P(C).No.3837 of 2011 -: 17 :- judgment of the Court which tried the case”. 12. The legislature has made a conscious change while Sec.225 of the Code of 1882 was re-enacted in the Code of 1908 in Rule 7 of Order XXI by omitting the expression “or of the jurisdiction of the Court which passed it” obviously as the legislature did not want the transferee executing court to go into the question of jurisdiction of the Court which passed the decree to do so. Page, C.J, answering the reference in S.A Nathan Vs. S.R.Samson (supra) commented on the observation made by West, J in Chogalal Vs. Trueman (supra) quoted