1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE NO. 2074 OF 2007 NOTICE NO. 2074 OF 2007 NOTICE NO. 2074 OF 2007 IN SPECIAL CIVIL SUIT NO. 48 OF 1991 (Court of Civil Judge (SD), Amreli) Investwell, a partnership firm running through its partners 1.Smt. Ila Rashmikantr Dave & Ors. ...Plaintiffs Versus 1.Shri Ramniklal M.Gandhi (since deceasd) through his heirs: 1A. Shri Mukesh R. Gandhi & Anr. ...Defendants, Mr. Bhandari i/b. Ms. Khushbu Prabhu for Claimants. Mr. V.Kanade i/b Shashi Jain & Co. for Defendant No.1A. CORAM: S.C.DHARMADHIKARI,J. CORAM: S.C.DHARMADHIKARI,J. CORAM: S.C.DHARMADHIKARI,J. DATE: 5th February, 2009. DATE: 5th February, 2009. DATE: 5th February, 2009. P.C. P.C. P.C. 1. This is a Notice under Order XXI Rule 22 of the Code of Civil Procedure,1908. The decree-holder/plaintiff seeks leave of this Court to execute a decree passed by the Court of Civil Judge, Senior Division, Amreli, in the State of Gujarat. The decree was passed on 21st December 1994 in Special Civil 2 Suit No.48 of 1991. The plaintiff/decree-holder was a partnership firm and the two defendants were one Ramniklal M. Gandhi and Rajesh Chunilal Meghani. 2. The decree directs that the defendants should pay to the plaintiff a sum of Rs.1,34,658.05 along with costs and interest at 12% per annum from 10.6.1991 till realisation. 3. The Execution Application under Order XXI Rule 11(2) was presented to this Court on 17th December, 2006. Upon its lodging in this Court, the decree-holder seeks assistance to execute the decree passed in the above Special Civil Suit and the claim being more than Rs.2 lakhs, it is within the limits of the Pecuniary Jurisdiction of this Court. In other words, the decree was transferred for execution to this Court. Since more than 2 years having elapsed from the date of the said decree so also the original defendant No.1 haing expired, that the decree holders are seeking leave under Order XXI Rule 22 of C.P.C. by the subject notice. 4. After the notice was served on the Judgment Debtors, objection is raised by one Mukesh R. Gandhi only. He is the son of the deceased defendant No.1. He has filed a reply and contended that the decree is a 3 nullity and, therefore, cannot be executed. The precise submission of his Counsel, Mr. Kanade, is that the decree was passed by the trial Court on 21st December,1994. While it is true that the decree was passed ex-parte and the deceased defendant No.1 had not appeared before the trial Court, yet, on a perusal of the Roznama of the trial Court, it is apparent that the suit was placed before the trial Court in June and September 1991. It was directed that the suit shall proceed ex-parte against the deceased defendant No.1 - Ramniklal and the other defendants. It ordered that the plaintiff can proceed with the matter. The plaintiff tendered oral and documentary evidence and the matter stood reserved for arguments after closing of evidence on 30th June, 1993. However, on 21st April, 1994, the deceased defendant No.1 had expired. Thus, the deceased expired during the pendency of the suit and the decree pronounced is a decree against a dead defendant. It was pronounced in a suit which had already abated as far as deceased defendant No.1. In such circumstances, it is not a valid decree in the eye of law. It is patently contrary to Order XXII of the C.P.C. and more particularly Rules 3 and 4 thereof. 5. He further submits that assuming without admitting that there is an obligation on the Court to proceed in 4 such cases and there is no legal bar in pronouncing the judgment and decree against such a defendant, yet, the Court has ignored Order XXII Rule 4 (sub-rule (4)) of the C.P.C. 1908. This has been inserted in 1976 in the C.P.C. precisely to take care of a situation where fruits of the litigation which is initiated should be available to the plaintiff. Merely because a non-contesting defendant has expired does not mean that the Court is powerless to pronounce a judgment and decree against him. However, what this provision requires is applying for an exemption and the Court exempting the plaintiff from the requirement of impleading the heirs and legal representatives of such a defendant. In the instant case, the record does not indicate that the Court was approached for such an exemption or that the Court has exercised its powers, albeit discretionary, in terms of this provision. Such being the case, there is an apparent illegality touching the root of the matter and therefore the decree in the Special Civil Suit can be termed as nullity. Such a decree cannot be executed and enforced by this Court. Therefore, there is no question of grant of leave under Order XXI Rule 22 of C.P.C. Consequently, the Notice must be dismissed. 6. In support of this submission, Mr. Kanade, the 5 learned Counsel for defendant No.1A has relied upon the following decisions :- (1) AIR 1964 S.C. 215 (Union of India vs.Ram Charan) (2) AIR 1992 Madras 159 (Elisa & Ors. vs.A.Doss) (3) (2004) SCC 698 (Punjab National Bank vs.R.L. Vaid & Ors). 7. On the other hand, Mr. Bhandari appearing for the plaintiff/decree holder submits that the executing Court cannot go behind a decree. Its powers are extremely limited. The executing Court is not a Court of Revision or Appeal. Its duty in law is to enforce and execute the decree as it stands. That the Decree is a nullity is a serious objection. It must be established by demonstrating that the Court lacked Inherent Jurisdiction. It must be is apparent and on the face of the Decree. A decree is a nullity in the sense, if it is pronounced by a Court which lacks inherent jurisdiction and such an objection goes to the root of the case and strikes at the power and authority of the Court to pass such a judgment and decree. It is only such an objection which can be raised and entertained by the executing Court that too, it must be apparent and there should be no necessity of elaborate and detailed examination of the materials before the trial Court. Applying this test to the present case, the decree 6 cannot be said to be a nullity. Further, this is not a case where this Court can examine the issue raised by the defendant No.1’s legal heir. The issue raised is that the Court ignored the procedural provisions and committed an illegality. The submission defendant No.1’s legal heir is to the effect that the decree-holder/plaintiff has impleaded the defendant no.1’s son as a legal heir by seeking amendment to the decree. That application was allowed and the decree was amended. However, the legal heir challenged that order by filing Special Civil Application before the Gujarat High Court and the Gujarat High Court permitted the decree-holder to withdraw the application for impleadment of the heir and legal representative of the deceased defendant No.1. Therefore, Mr. Bhandari submits that merely because such an application was made and withdrawn is of no consequence and does not prevent the decree holder from applying for leave under Order XXI Rule 22 of C.P.C. Further, this does not prevent the Executing Court from exercising its powers to enforce and execute the subject decree. For all these reasons, and submitting that the delaying tactics should not be encouraged, Mr. Bhandari prays that Notice be made absolute and the objections be overruled. 7 8. With the able assistance of the learned Counsel for both sides, I have perused this notice, reply and the rejoinder affidavit. I have also perused the legal provisions and the decisions brought to my notice. 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 8 inherent jurisdiction because this goes at the root of the matter and strikes at the very power and authority of 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 Balavant N. Viswamitra and others vs. Yada Sad Balavant N. Viswamitra and others vs. Yada Sad Mule (deceased by L.Rs.) and others Mule (deceased by L.Rs.) and others Mule (deceased by L.Rs.) and others reported in AIR 2004 9 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 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 10 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. Rafique Bibi (D) by L.Rs. Rafique Bibi (D) by L.Rs. s. Sayed Waliuddin (D) by L.Rs. and others s. Sayed Waliuddin (D) by L.Rs. and others s. 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) Rafique Bibi (supra) 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 11 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 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. In my view, these principles apply to the facts of the present case. Admittedly, the decree and judgment of the trial Court has not been challenged till date. That is not reversed or set aside. It is not the case of the heirs and legal representatives of the defendant No.1 that the decree is passed by a Court lacking Inherent Jurisdiction and therefore not enforceable. The application for execution has been made within the 12 time prescribed by law. More than two years having been lapsed from the date of the decree and the decree being sought to be enforced against legal representatives, the application under Order XXI Rule 22 is maintainable. It is not the argument before me that the application for execution itself or the notice is not maintainable. What is raised before me is an issue that the decree is a nullity. 13. For the foregoing reasons, I am unable to accept the contention of Mr. Kanade that the decree is a nullity. Applying the principles laid down by the Supreme Court in Rafique Bibi’s case, Rafique Bibi’s case, Rafique Bibi’s case, at best,the argument is that it is vitiated by an illegality or procedural irregularity. That does not mean that the decree is a nullity. In such circumstances, any wider question need not be gone into. The larger controversy raised before me as to whether exemption under Order XXII Rule 4 sub-rule (4) being claimed or not, or if claimed, whether granted or not, or if granted, whether rightly or wrongly, is kept open for being raised in appropriate proceedings. Once I find that the decree is not a nullity as contended but is enforceable and further all legal requirements stipulated under Order XXI Rule 22 of C.P.C. being satisfied, this is a fit case where notice is required to be made absolute. 13 14. Notice is accordingly made absolute. However, there will be no order as to costs. 15. In the view that I have taken it is not necessary to refer to the decisions brought to my notice by Mr. Kanade and Mr. Bhandari. These decisions touch the applicability of Order XXII Rule 4(4) of C.P.C. It is contended by Mr. Bhandari that even in absence of exemption, the decree can be enforced against the legal representatives. Having taken a view that decree is not a nullity, I need not answer this issue. Similarly, I need not consider the submissions of Mr. Kanade that the view taken by the learned Single Judge of the Rajasthan High Court is, with respect, not a correct view in law and the Judgment of the Madras High Court (supra) lays down the correct principles. These matters can be raised in appropriate proceedings by the heirs and legal representatives of the deceased defendant, if so advised. The other defendant has not come forward to challenge the executability and enforceability of the decree. For this reason as well, the Notice must be made absolute. 16. At this stage, Mr. Kanade appearing for the defendant No.1 prays that the operation of this Judgment 14 and order be stayed so as to enable the defendant no.1’s legal representative to challenge this order further or adopt appropriate legal proceedings. This request is however, opposed by Mr. Bhandari. In my view, interest of justice would be subserved if the operation of this order is stayed for four weeks. It is accordingly stayed for four weeks. However, this does not prevent the decree holder from proceeding to execute the Decree against the defendant No.2/judgment debtor No.2. (S.C.DHARMADHIKARI,J.) (S.C.DHARMADHIKARI,J.) (S.C.DHARMADHIKARI,J.)