Mannulal vs Jhaduram and Others

Hon''ble Shri Prashant Kumar Mishra, J.—Short question for determination in this petition under Article 227 of the Constitution of India is when in a suit filed by the plaintiff concerning land where the State Govt. has not been joined therein as a party as required under Order 1 Rule 3B of the Code of Civil Procedure, 1908 (in short ''the Code'') and a decree is ultimately passed therein, such decree is nonest and void and executing Court has jurisdiction to refuse to execute the decree on this ground. Concededly petitioner preferred civil suit No. 79A/1990 in the Court of Civil Judge Class-2, Janjgir. Said suit was decided exparte and judgment and decree was passed on 18/1/91 partly allowing the suit concerning Khasra No. 3026 village Baloda area 361/2 x 111/2 sq. ft. It was directed that defendant shall remove the hut constructed thereon and shall hand over vacant possession of the suit land to the plaintiff. When this decree was sought to be executed judgment debtors raised objection on the ground that the suit wrongly proceeded without joining the State Govt. therefore, execution proceedings deserves to be dropped. Executing Court has allowed the said objection and has recorded a finding that the decree passed is a nullity and the execution should not be proceeded.

Order 1 Rule 3B of the Code of Civil Procedure, 1908 as amended in the State of Madhya Pradesh (now C.G.) makes the following provisions:-

3B. Conditions for entertainment of suits-(1) No suit or proceeding for,-

(a) declaration of title or any right over any agricultural land, with or without any other relief; or

(b) specific performance of any contract for transfer of any agricultural land, with or without any other relief shall be entertained by any court unless the plaintiff or applicant, as the case may be, knowing or having reason to believe that a return u/s 9 of the Madhya Pradesh ceiling on Agricultural Holdings Act, 1960 ( No. 20 of 1960) in relation to land aforesaid has been or is requited to be filed by him or by any other person before competent authority appointed under that Act, has impleaded the State of Madhya Pradesh as one of the defendants or non-applicants, as the case may be, to such suit or proceeding.

(2) No Court shall proceed with pending suit or proceeding referred to in sub-rule (1) unless, as soon as may be, the State Government is so impleaded as a defendant or non-applicant.

Explanation :-The expression "suit or proceeding" used in this sub-rule shall include appeal, reference or revision, but shall not include any proceeding for or connected with execution of any decree or final order passed in such suit or proceeding.

In the matter of Brijraj Singh and Others Vs. Bitto Devi (Smt.) and Another, ; Ram Singh Vs. Gulab Rani and Others, and Babu Lal Vs. Hazari Lal Kishori Lal and Others, , it has been held that a decree passed without joining the State is not a nullity and non compliance with the provisions contained in Order 1 Rule 3-B of C.P.C. as amended in M.P. (now Chhattisgarh) does not create any jurisdictional incompetence in the Court hearing the suit or appeal solely on account of non compliance therewith. In view of the above legal position the executing Court could not have refused to execute the decree on the ground that judgment ad decree is void.

Explanation appended to sub-Rule 3B of the Code also clearly provides that expression "the suit or proceeding" used in this sub-rule shall include appeal, reference or revision but shall not include any proceeding for or connected with execution of any decree or final order in such suit or proceeding. Thus, even otherwise the provision itself excludes execution proceeding from the rigour of the provision. In view of the above, the impugned order deserves to be and is hereby set-aside.