Govindaswami Chettiar (died) and Another vs Parthasarathi Naicker

K.M. Natarajan, J.—This appeal is directed against the older passed by the District Judge, Cuddalore, confirming the order passed by the Sub Judge, Cuddalore. The facts, which are necessary for the disposal of this appeal can briefly be stated as follows- The appellant herein is the judgment debtor. The respondent filed a suit against the appellant for recovery of money of Rs. 6807-29 due on a promissory note dated 6.9.1969. The said suit was decreed by consent of parties after the appellant herein taking special oath. Subsequently when execution petition was taken (E.P. 433 of 1974) appellant herein raised an objection saying that since on the date of the decree, the Indian Oaths Act, 1873 was repealed by the Indian Oaths Act, 1969 the decree itself is a nullity and it cannot be executed. The Subordinate Judge overruled the objection on the ground that the Indian Oaths Act 1969 does not bar taking of oath by consent of parties and on the basis of the same the decree is to be passed. As against the same, he preferred an appeal to the District Court and he was unsuccessful and hence the appeal in this court. This appeal was admitted on the following substantial question of law, namely-- Whether subsequent to the passing of the Oaths Act, 1969, there could be an agreement between the parties to have a suit decided by taking special oath and whether it would be opposed to public policy?

Learned counsel for the appellant submitted that there was provision for taking special oath as per Ss. 9 to 12 of the Indian Oaths Act 1873, that the said provision has been now deleted in the Indian Oaths Act, 1969, that in view of the absence of any specific provision in the new Act, the decree passed on special oath is nullity, that such a decree passed on taking special oath even by consent of parties is opposed to public policy and that in any event it is a nullity. On the other hand, the learned counsel for the respondent submitted that under the new Act, there is no prohibition for taking special oath by consent of parties for decree to be passed. Learned counsel submitted that this question came up for consideration before a Division Bench of this Court in a decision reported in Munusami Naidu v. Thyagaraya Chettiar 90 L.W. 279=1977 M.L.J. 358, wherein Kailasam, C.J. and Balasubrahmanyam, J. held as follows:

We are unable to accept the contention of the learned counsel that because the Oaths Act, 1873 had been repealed what the plaintiff bad stated on special oath is not evidence. It may be that if the appellant was aware that the Oaths Act, 1873 was not in force, he might have questioned the evidence of the plaintiff and submitted that it was not conclusive as against him. But, as it is, what the plaintiff had stated is evidence and the mere fact that he had given it under special oath will not deprive its status as evidence. Though S. 11 of the Oaths Act, 1873 was not in force and the appellant could have cross-examined the plaintiff, as the evidence now stands on record the plaintiff''s evidence has not been challenged. The result is that no interest has been paid except those that are endorsed on the document, and the decree as passed is perfectly proper. We refuse to accept the theory that because the plaintiff took a special oath, he is in a worse position than if he had taken an ordinary oath. There is no substance in this appeal and it is dismissed.

That was also a case where a suit was filed for recovery of money against the appellant on the foot of a security bond executed by him. The appellant filed a written statement opposing the claim and contended that no money would be due to the plaintiff. When the suit was taken up for trial, plaintiff agreed to take a special oath on his family deity that for the suit security bond no money except those shown by way of endorsement had been received by him. It was also agreed that on the plaintiff-mortgagee taking such a oath, the suit may be decreed. The plaintiff took a special oath and the suit was decreed. The judgment debtor filed an unnumbered execution application praying that the decree may be declared as a nullity having been passed by a civil court without jurisdiction. The executing court dismissed the application which was filed under S. 47, C.P. Code, and as against the said order, the judgment debtor filed an appeal to this Court. After considering the earlier decision in Vasudava Shanbog v. Naraina Pai 2 Mad. 356 and the contention of the judgment debtor, it was held as stated above.

Learned counsel for the respondent drew my attention to the decision in Gujraj Singh v. Raghunandan Singh 1979 Allahabad L.J. NOC. 106 wherein it was held:--

Though provision as to special oath in Oaths Act of 1873 had been repealed by S. 9 of Oaths Act of 1969, parties can agree to abide by statement on special oath of witness including one who is party to suit decree passed on that basis. Valid.

Applying the ratio laid down in the said decisions, I am of the view that the decision of the lower court is perfectly correct and legal and there is absolutely nothing to show that the decree passed in the said suit is a nullity and without any jurisdiction.

Learned counsel for the appellant relied on the decisions reported in Kiran Singh and Others Vs. Chaman Paswan and Others, Ferozi Lal Jain Vs. Man Mal and Another, and Kaushalya Devi and Others Vs. Shri K.L. Bansal, . The lower appellate court has also considered the decision in Kiran Singh and Others Vs. Chaman Paswan and Others, and distinguished the same. It was observed that the principle that when a decree had been passed without jurisdiction can be challenged at any stage as nullity, that position is not disputed and that the point is whether a decree that has been passed after taking special oath by consent would be nullified on the ground that the Act has been repealed or superseded. Hence the said decision is not applicable. Similarly the decisions reported in Kaushalya Devi and Others Vs. Shri K.L. Bansal, and Kiran Singh and Others Vs. Chaman Paswan and Others, are not applicable to the facts of this case. For all these reasons, I am of the view that the decree passed is not'' a nullity. The substantial question of law in this case is answered as follows:-After the passing of the Oaths Act, 1969, there can be an agreement between the parties to have a suit decided by taking special oath and it would not be opposed to public policy. Accordingly, the appeal fails and is dismissed, however, no order as to costs.