Ajay Kumar Kohli vs Karanvir

A suit for recovery of Rs. 4,143.85 instituted by respondent herein has given birth to this litigation, which has been raging since 1979. The suit

was decreed expert in 1979. The executing court, however, vide order dated 28.7.1987 rejected decreeholder's application for execution on the

ground that decree was a nullity as the suit had been instituted by the plaintiffs in violation of terms of section 69 of Partnership Act. Aggrieved by

this order, plaintiffs preferred an appeal before learned District Judge, Poonch who set aside the order of executing court, directing it to pass

appropriate orders in the application for execution, The Petitionerdefendant has come up in revision against this order.

The sole point canvassed by Mr. Kohli, LC for petitioner, is that appeal before District Judge, Rajouri against the order passed by executive

court was not competent. According to him, execution court had passed older dated 2871987 under section 47 of CPC and an order passed

under this section was appeasable before amendment of section 2(2) CPC, brought in by Act XI of 1983. The relevant provision before and after

the amendment real as under:

Before amendment:

2(2) ""decree"" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of

the parties with regard to all or any of the matters in controversy in the suit any may be either preliminary or final. It shall be deemed to include the

rejection of a plaint and the determination of any question within Section 47 or section 144, but shall not include.

(a) Any adjudication from which an appeal lies as in appeal from an order, or

(b) Any order dismissal for default.

After amendment:

2(2) ""decree"" means the formal expression of an ad jubilation which, so far as regards the court expressing it, conclusively determines the rights of

the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the

rejection of a plaint and the determination of any question within section 144, but shall not include.

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

On perusal of the prevision before and after the amendment, it becomes clear that words ""any question within section 47"" stand deleted in the

amended provision by Act XI of 1983 That being so, an under passed under Section 47 CPC has ceased to be appeasable. To that extent,

therefore, it can be safely held that appeal before the District Judge was not maintainable.

But the matter somehow does not rest at that. It still re quires to be seen whether the executing court had passed the order rightly or wrongly?

This naturally leads me to examine the validity and legality of the order even while holding that the appeal before the District Judge was not

competent.

It is a beaten law that while an executing court is competent to determine all questions arising between the parties to the suit in which decree was

passed and in which questions relate to execution, satisfaction and discharge of such decree it cannot go beyond the decree passed. It has to

execute the decree as it is. It cannot sit over judgment it and scrutinise its validity or otherwise. It is a different matter, however, in case a decree

suffers from inherent want of jurisdiction on its face. In such a case, it would be a nullity and the court would be within its limits in refusing to

execute it.

Therefore, wherever a decree appears to be a nullity on the face of it on account of any defect of jurisdiction, whether pecuniary, territorial or in

respect of subject matter of action, its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon even at the stage

of execution and even in collateral proceedings.

Viewed thus, petitionerdefendant was within his rights to show that decree passed against him was nullity as it manifestly suffered from want of

jurisdiction. Therefore, it all depended upon the nature of the objections taken by him From the record it transpires that objection raised related to

the maintainability of respondents' suit in the face of provision of section 69 of the Partnership Act and it pleased that suit was incompetent as it had

been brought in the name context of an unregistered firm. The question that arises is whether in the light of the objection taken the executing court

have treated the decree a nullity and refused to execute it?

At the very outset, it requires to be pointed out that the decree could not be said to be nullity on the face of it in the of the objection taken.

Became even if it is conceded, it could not be held that decree was a nullity on the face of it. This is so because the objection did not raise a pure

question of law to lead to the conclusion that the decree passed in the suit brought in the name of an unregistered Firm is a nullity. To reach such a

conclusion would entail an inquiry bringing within its ambit a number of factors viz. whether plaintiffs constituted a Firm, who were the partners,

was the firm required to be registered and so on. Only there after could it be said that plaintiffs suit is bit by section 69 of the partnership Act. In

the words, it did not transpire from the face of decree passed that it suffered from any want of inherent jurisdiction on account of noncompliance of

term of aforesaid provision. That being so the executing court could not have declared the decree a nullity and that too on material whatsoever. A

decree can't be allowed to be wrecked on an objection, which is primarily available to judgment debtor during the trial of the suit.

Coming to the mandate of section 69, it bars a party to file a fruit brought in the name of an unregistered firm. If anything it creates a disability for

an unregistered firm to institute a suit. It does not circumscribe or take away the power of the court to try such suit and to pass a decree thereon.

All it envisages is that registration of a firm is a condition precedent to its right to institute a suit. If a firm is not registered at the time of filing of suit

court may refuse to entertain it and dismiss it. Therefore, it presents no difficulty to hold that section 69 does not deprive a court of its jurisdiction

to try a suit, instituted by or on behalf of an unregistered firm. It only prohibits such a firm to file any such suit to enforce a right arising from a

contract. Consequently, a decree passed by the court in such a suit can't be termed a nullity. It may be open to the executing court to see whether

the decree is a subsisting decree or a nullity, but any objection raised in this regard must show him decree apparently lacked in jurisdiction on

whatever court. If the objection relates to some irregularity or illegality committed by the court in passing such decree on account of some

infraction of a prevision of law or otherwise and where the matter entails an inquiry and examination, the executing court can't refuse to execute the

decree by treating it a nullity. It is the bounden duty of an executing court to execute the decree, which is binding and conclusive in between the

parties, though it may not be according to law for which the aggrieved have remedy available in law.

All this leads me to set aside the order passed by executing court. The execution of decree shall proceed in accordance with law. Record be

returned.