Bodh Raj and Others vs Rano Devi

S.K. Gupta, Judge

Mst. Rano Devi, applicant, has preferred this petition seeking review of the order dated 12-10-2000 passed by this Court in CSA No.

19/1994 treating it as a Revision in case titled Bodh Raj and others v. Smt. Rano Devi.

Setting in facts of the case, a suit for possession commenced by Bodh Raj and others in respect of the land aggregating 57 kanals and 13 marlas

came to be decreed by Massif, Billawar, vide his judgment and decree dated 18-08-1973. The decree holders, in which Mst. Rano Devi took the

objection with regard to its executability, put the decree to execution the legal heir of deceased Beli Ram, judgment debtor. It was further pleaded

that the decree is un-executable being nullity and without jurisdiction having been passed in contravention of the provisions of Agrarian Reforms

Act. Plea taken by the judgment-debtor, Mst. Rano Devi, prevailed with the executing Court and the Court held the decree un-executable on the

ground of being against the provisions of Agrarian Reforms Act, vide its order dated 31-10-1975. Aggrieved by the order of the Executing Court,

an appeal was preferred by the decree-holders before District Judge, Kathua. The District Judge allowed the appeal, Kathua, vide his judgment

and order dated 27-05-1989, and after setting aside the order remanded back the case with the direction for the execution of the decree. Beli

Ram, judgment-debtor, however, died during the currency of the appeal before the District Judge, Kathua, and was succeeded by Mst. Rano

Devi. Civil Revision No. 184/1990 was preferred by Mst. Rano Devi before the High Court to impugn the correctness of the order passed by the

District Judge, Kathua. The Revision, however, stood disposed of with the direction to the Executing Court to dispose of the application for

impalement as party in the execution proceedings, if preferred by Mst. Rano Devi, petitioner, and permit her to canvass her right to claim property

as legal heir of the deceased Beli Ram, vide its judgment and order dated 26-09-1991. The applicant, Rano Devi, was, however, declared as legal

heir of the deceased Beli Ram by the Executing Court in deciding her application made in this behalf. Thereupon, she preferred to file objections to

the maintainability of the execution petition filed by the decree-holders, Bodh Raj and others, before the Executing Court (Munsiff, Billawar). The

Executing Court of Munsiff, Billawar, when found himself in dilemma on variant directions of the District Judge, Kathua, on the one hand, and the

High Court, on the other, made a reference seeking direction/guidance for the disposal of the matter in execution proceedings pending before him.

While rejecting the reference vide order dated 5-11-1993, the High Court observed that once Mst. Rano Devi is held to be legal heir of the

deceased Beli Ram, she under law is entitled to file objections with regard to the maintainability of the execution petition to be decided by the

Executing Court under law. The Executing Court, after having considered the objections in respect of the maintainability of the execution

proceedings, again held that the decree is nullity and in contravention of the provisions of the Agrarian Reforms Act of 1972 and 1976, and

dismissed the execution petition, vide order dated 24-03-1994. The Executing Court further held that such a decree is unelectable by the Civil

Court. Against the order of dismissal of the execution petition by the Executing Court, the decree-holders, Bodh Raj and others, impugned its

correctness in an appeal before District Judge, Kathua, which again stood dismissed by the District Judge, Kathua, vide order dated 30-08-1994,

in holding the order passed in execution proceedings u/s 47 CPC, non-appeasable. It was this order passed by the Court of District Judge,

Kathua, which became the subject matter of challenge before the High Court in appeal, which, however, came to be treated as Revision and pen

ultimately decided vide its order dated 12-10-2000, in holding as under:

Since the order of the executing court dated 31-10-1975 holding that decree was not executable has been set-aside by the District Judge on

27.5.89 and that order had attained finality, the executing court acted without jurisdiction in passing the order dated 24.3.1994. This revision,

therefore, is allowed and the order impugned set-aside.

It is against this order that the present Review Petition has been filed.

I have heard the learned counsel for the parties and have carefully gone through the record.

The basic stand taken by Mr. P. N. Riana in this Review Petition is that the Court, while deciding CSA No. 19/1994 treated it as Revision, did

not take into consideration the order passed in CR No. 184/1990 in which the order dated 27-05-1989 made by the District Judge, Kathua, was

challenged. According to Mr. Riana, order dated 27-05-1989 passed by the District Judge, Kathua, was set aside in the aforesaid revision, and

the Trial Court again by its order dated 24-03-1994 held the decree as nullity. Further submission of Mr. P. N. Riana, applicant's/petitioner's

Advocate, is that the order of Executing Court declaring the decree as nullity and un-executable, has been wrongly set aside by the Court in CSA

No. 19/1994. The Court has not taken into account the order passed by the High Court in Civil Reference No. 2/1993, wherein not only the right

of applicant as legal heir of deceased Beli Ram was acknowledged, but her right to file objections with regard to the maintainability of the execution

petition/proceedings was also given recognition. In controvert the contention and con testing the claim of the applicant/petitioner, Mr. J.P. Singh,

learned counsel appearing for the non-applicants/respondents submitted that since the order dated 27-051989 passed by the District Judge,

Kathua, in setting aside the Executing Court dated 31-10-1975 holding the decree as nullity and un-executable, has not been challenged by the

judgment-dab to the order attains finality.His further submission is that the Executing Court declining the execution of the decree, acted without

jurisdiction and its order dated 24-031994 has been set aside on sound legal principles and contextual facts of the case. Accordingly to Mr. J.P.

Singh there is no error apparent on the fact of the record necessitating interference for its review in this petition. It is further submitted that the

Executing Court cannot go beyond decree even if it is erroneous on law or facts.

Indubitably, a Court executing a decree cannot go beyond the decree between the parties or their representatives. It must take the decree

according to its tenor and cannot entertain any objection that the decree was incorrect on law or on facts until it is set aside by appropriate

proceedings in appeal or revision. A decree even if it is erroneous is still binding on the parties. But when a Court, who has no jurisdiction to make

it, makes the decree objection as to its validity may be raised in an execution proceeding, if the objection appears on the face of the record.

Further, the decree passed without jurisdiction is a nullity and is non-est. Question of its validity can be raised at the execution stage, even if not

appealed against. I am fortified with my view in the judgment of the Apex Court in case titled Chiranjilal Shrilal Goenka (Deceased) through Lrs.

Vs. Jasjit Singh and Others, , which reads as under:

It is settled law that a decree passed by a Court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes

to the root of its jurisdiction or lacks inherent jurisdiction is a coram non juiced. A decree passed by such a court is a nullity and is no est. Its

invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in

collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree.

Adverting to the facts on record, it is significant to point out that his Court has based its order in Revision No. 19/1994, under review on the

ground that the order of District Judge, Kathua dated 27-05-1989 setting aside the order of the Executing Court dated 31-10-1975 having not

been challenged assumed finality and, as a consequence, the Executing Court in passing order dated 24-03-1994 again in declaring the decree un-

executable and nullity had acted without jurisdiction. It is not in dispute that a Revision Petition against the order dated 27-05-1989 passed in

appeal by the District Judge, Kathua, was preferred by Mst. Rano Devi, legal heir of deceased Beli Ram, in the High Court. This Revision Petition

came to be disposed of vide order dated September 26, 1991, which reads as under:

With the consent of the parties, this revision petition is disposed of with a direction to the executing court that in case the petitioner herein prefers

an application for imp leading her as party in the execution proceedings, the application be disposed of under law and she be permitted to canvass

her, right to claim property as legal heir of the deceased.

The order in its plain language reveals that a direction has been given to the Executing Court to consider the application of the petitioner for

impalement as party in the execution proceedings and she be permitted to peruse her right to claim property as legal heir of the deceased Beli Ram.

This order envisages the Trial Court to decide the execution petition afresh after giving an opportunity to Mst. Rano Devi to pursue her claim to the

property in dispute. This clearly amounts to setting aside the order of the District Judge by implication and giving recognition to Mst. Rano Devi,

petitioner, in the said Revision Petition, to claim the property as legal heir of the deceased Beli Ram. This Court manifestly has proceeded on the

assumption that the order passed by District Judge, Kathua on 27-05-1989 having not been challenged and assumed finality and the order of the

Executing Court again declaring the decree un-executable and nullity was without jurisdiction, allowed the Revision and set aside the same. It is apt

to point out that the order of the District Judge dated 27-05-1989 having not been set aside in Revision, the implication has been referred above

and made the basis that the order under Revision by the Court amounts to error apparent on the face of the record. This fact is further

strengthened from the order in Civil Reference No. 2 passed by this Court on 5-11-1993 in observing that when once Rano Devi is declared as

the legal heir of deceased Beli Ram, she under law, is entitled to file objections with regard to maintainability of the execution proceedings to be

decided by the Trial Court according to law. This clearly gives recognition to the right of Mst. Rano Devi to contest the maintainability of the

execution proceedings and acknowledge her claim as legal heir of deceased Beli Ram. This is one aspect of the matter. Another aspect of the

matter is that when the order has been passed by the Court, which lacks jurisdiction, it does not assume finality even if it is not challenged. Such an

order suffers from patent illegality and can be a subject matter of challenge in any subsequent proceedings. This aspect has also escaped

consideration of the Court and amounts to an error apparent on the fact of the record, necessitating interference of the Court in exercise of its

power of review under Order 47 of the CPC.

In view of the above, the order of Executing Court declaring the decree as nullity and un-executable has been wrongly set aside by this Court in

CSA No. 19/1994 treated as Revision. The Revision No. 19/1994, in my opinion, does not possess any merit and is hereby dismissed. As a

consequence of this order, the earlier order passed in the aforesaid Revision Petition is reviewed and recalled accordingly in allowing the Review

Petition.

No order as to costs.