Harlal Kamti and Others vs Jhari Singh and Others

Luby, J.—Harlal Kamti and others, decree-holders, appeal against the order dismissing the execution case which they brought against Jhari Lal Singh and other judgment-debtors, now respondents. The facts are as follows: The Kamti appellants got a preliminary decree on a mortgage bond on 27th January 1927. Subsequently the appellant Anchu Singh purchased a portion of the decree from them. The mortgage decree was made absolute on 25th November 1930. Execution was taken out in June 1933; and after the usual formalities the property was sold and purchased by the decree-holders on 7th November 1933. Miscellaneous cases were then filed by the judgment-debtors. On 5th June 1934, the sale was set aside for failure to have notices served under Order 21, Rule 16, in respect of that portion of the decree which had been purchased by Anchu Singh. A few days later in another miscellaneous case the Munsif dismissed the execution case altogether, on the ground that the decree was time barred and incapable of execution and in fact a nullity having been made final on an application which was filed more than three years after the passing of the preliminary decree. This order was supported on appeal by the learned District Judge of Darbhanga, who held that the decree was time-barred and that the executing Court could go behind the decree as had been done by the Munsif.

The first argument advanced in this appeal is that the decree was time-barred. The decree itself was not time-barred; but the application upon which the decree had been made final was filed more than three years after the date of the preliminary decree. And the period of limitation for such application would be three years under Article 181, Limitation Act. It must be noticed, however that the decree-holders had applied within the three years for preparation of a final decree. Their first application was rejected for default as they had omitted to take some steps with regard to the service of notice on the judgment-debtors. It is somewhat doubtful whether the Munsif was right in rejecting the application. He might have done better to keep it pending until the decree-holders complied with his requirements. But as it was rejected, the decree-holders were quite at liberty to file another application for final decree within the three years allowed. The order rejecting the application did not amount to dismissal of the mortgage suit. After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. And even if the decree-holder''s second application was filed after the expiry of the period of limitation, the Court had full power to restore the original application and make its preliminary decree final for the ends of justice, u/s 151, Civil P.G. Ample authority for these propositions will be found in the following cases: Jodha Singh v. Gokaran Das Pande 1925 All 622, Chandra Sekhar v. Ameer Begam 1927 All 439, Puran Lal v. Komal Singh 1933 Oudh 229, Tadepalli Sriramulu v. Firm of Srirumulu 1933 Mad 55 and Lachmi Narain Marwari v. Balmakund Marwari 1924 PC 198. In my opinion the decree was neither time-barred nor incapable of execution.

The other question to be decided is whether the executing Court was entitled to go behind the decree as has been done by the Munsif. The learned District Judge has referred to the remarks made by a Full Bench of this Court in Jangli Lall v. Laddu Ram Marwari 1919 Pat 430. In that, case it was held that an executing Court can refuse to execute a decree passed against a dead man because such a decree is a nullity. He has also referred to the case of Srimati Haridasi Ghosh v. MothiWari Town Co-operative, Society 1934 Pat 145. In that case it was held that an executing Court could refuse to execute a decree of the Registrar of Co-operative Societies made against a person who was not a member of the Co-operative Society concerned, because such a decree was beyond the Registrar''s jurisdiction and therefore a nullity. But the case which we are now considering is somewhat different. We must remember that an order made without jurisdiction is not the same thing as an order made in erroneous exercise of jurisdiction. The former is null and void but the latter is only voidable. This distinction has been drawn by a Full Bench of the Calcutta High Court in Gora Chand Haldar v. P.K. Roy 1925 Cal 907. It was held in that case that an executing Court can only question such decrees as have been made without jurisdiction. In the case which we are now considering, the Munsif was seised of the case and competent to pass orders on the application for final decrees. The mere fact that he overlooked the bar of limitation or acted wrongly in not applying it would not make his order without jurisdiction. In my opinion the executing Court was not entitled to go behind this decree, which itself was not time-barred, and investigate the question whether the application upon which it had been prepared was time-barred.

It was contended for the respondents that Munsif had no jurisdiction to dispose of the Miscellaneous Case No. 175 of 1934 (with which we are now concerned) after disposing of the other Miscellaneous Case No. 299 of 1934, in which he had passed the following order on 5th June 1934

That the entire execution proceedings be declared to be void and a nullity and the sale held in the same on 7th November 1933 be set aside.

This argument does not appeal to me. The Munsif had jurisdiction over the execution case and over the miscellaneous case filed in connexion therewith; and he was not prevented by his order passed in one miscellaneous case from passing a final order in the other miscellaneous case. Moreover, he had not disposed of the execution case by his earlier order, but only decided that the proceedings had been vitiated by a material irregularity, viz., the omission to serve notices under Order 21, Rule 16. Only one thing remains to be mentioned in this case; and that is that the judgment-debtors should have raised this objection much earlier. They had their first opportunity when notices were served on them in 1930 in connexion with the second application for preparation of final decree. They had another opportunity in 1933 when the execution case was started and notices were served on them under Order 21, Rule 22. But they did not take advantage of either opportunity. Their objection was not (filed until six months after the sale.

In my opinion the execution was not time-barred and the decree was not incapable-of execution. I would therefore, allow the appeal and, set aside the order of the District Judge dated 12th December 1934 affirming that of the Munsif dated 15th June 1934 by which they dismissed the execution case on the ground of limitation; and I would award to the appellants their costs of these proceedings in all the Courts. The Munsif will now proceed to dispose of the execution case according to law.

Fazl Ali, J.

I agree to the order proposed. The principal question to be determined in this appeal is whether the final decree which is sought to be executed by the appellants can be regarded as a nullity on the ground that the application made by the decree-holders for making the preliminary decree final was made more than three years after the passing of the preliminary decree. In my opinion this question must be answered in the negative. It is not disputed that before the decree was made final a notice was issued to the judgment-debtors, but they did not appeal and object to the decree being made final on the ground that the application made by the decree-holders was beyond time. Even after the passing of the final decree they took no steps to question that decree or to have it set aside. In Gobardhan Das v. Dau Dayal 1932 All 273. Sulaiman, C.J., dealing with the question whether a decree passed in a suit which was time barred was binding on the parties observed as follows:

A decree passed in a suit which was time barred is binding on the parties and the question of limitation is by implication deemed to have been decided against the defendant.... It must be assumed that the Court by oversight decided the question of limitation wrongly. But a wrong decision, whether express or implied on a question of limitation does not oust the jurisdiction. Limitation is a question of procedure and not one of jurisdiction: see Nathu Ram v. Kallian Das (1904) 26 All 522. The Court was seised of the case and was competent to pass orders on the application.

With this view I respectfully agree and in my opinion, therefore, the decree sought to be executed was not a nullity and the executing Court could not refuse to execute the decree on that ground.