Nar Singh vs Nihalkaran

V.R. Newaskar, J.—The only question raised in this appeal is regarding the validity of the decree obtained against the appellant by the respondent. The matter arises in execution.

The facts are as follows:- Respondent Nihalkaran obtained a decree for ejectment and arrears of rent in a suit filed in 1951 by him against the appellant. The decree was passed by the trial Court in favour of the respondent on 23-9-1953. There was an appeal against that decision and the same was confirmed by the Appellate Court on 29 4-1957. The respondent, after the decree was thus confirmed in appeal applied for its execution in the Court of Civil Judge, Second Class, Hatod. A notice under Order 21, Rule 22, C. P. Code was issued to the judgment-debtor. Thereupon an objection was raised on behalf of judgment-debtor that the said decree in favour of the appellant was null android as, subsequent to the filing of this suit, the Madhya Bharat Legislature had passed a law known as Madhya Bharat Abolition of Jagirs Act, Act No. 28 of 1951 which came into force on 7-12-1951. Under the terms of the said Act the decree-holder''s rights in the land in dispute as the Jagirdar of the village Hingonia, had come to an end and the said land, situated as it is in the afore-said Jagir village, had stood resumed to the State free of all encumbrance and the judgment-debtor, as the tenant of the Jagirdar had by Section 21 of the said Act acquired the status of Pucca Tenant. The Court executing the decree rejected this contention on the ground that the said Act had come into force soon after the suit had been filed and long before the decree had been passed by the trial Court. The judgment-debtor had not raised any objection regarding the right of the plaintiff to obtain the decree for ejectment against him on that ground either in the trial Court or later even in appeal. The objection, regarding the validity of the decree therefore could not be raised in exertion. The appellate Court confirmed this decision. The judgment-debtor Narsingh has preferred this second appeal.

It is contended on behalf of the appellant judgment-debtor that ordinarily when a suit is brought by the plaintiff for enforcement of his alleged right as it existed at the date of the suit, it is that right which is determined in the suit in the absence of any amendment in the pleadings of the parties as regards variation or cessation of that right by subsequent change in law. It is therefore open for the judgment-debtor, after a decree in respect that right is passed against him, to bring to the notice of the executing Court that during the pendency of the suit, the right determined has been put an end to by a change in law subsequent to the date of the commencement of the suit. The Executing Court in that event is bound to take notice of such an event which brings an end to the plaintiff''s right and refuse to execute the decree, Such a course, it is said, does not amount to going behind the decree. Reliance in this connection is sought to be placed upon the decision of this Court reported in AIR 1953 361 (Nagpur) 1954 MBLJ 643 : AIR 1954 MP 181 (Full Bench) Nabbobai Vs. Hasan Gan and Civil Miscellaneous Appeal No. 28 of 1959 Maheshprasad Vs. Shankarrao decided on 2nd February 1961 by this Bench.

On the other hand it is contended on behalf of the opposite party that the only objection which the executing Court can take notice of is the objection as to jurisdiction to the Court passing the decree. In such a case the decree becomes null and void and consequently incapable of execution. In any other case the executing Court is bound to execute a decree which is not satisfied.

Now the question to be considered is whether the decree in this case has become incapable of execution due to the passing of the Madhya Bharat Abolition of Jagire Act. The decree in this case cannot be said to have become null and void on the ground that it wan granted by a Court having no jurisdiction to do so. That is also not the contention of the appellant. For it is well-settled that ordinarily the rights determined in an action are those which exist between the parties at the date of the commencement of the action although it is sometime open to the Court to take notice of subsequent events including change in law which necessitate either moulding of relief claimed in the suit or determination of these rights in accordance with the changed context, vide, AIR 1941 5 (Federal Court) and 1954 MBLJ 643: A. I. R. 1954 MP 181 . But the power to take notice of subsequent event is not obligatory and where such power is not actually exercised the determination does not ipso facto become bad on the ground of want of jurisdiction. For in that case the Court does what it is called upon to do. The petition becomes akin to that where after final determination of the rights of the parties, there is change in law which effects the rights thus determined. The decree in that case does not become null and void but the matter can be considered at the stage of execution if the subsequent law has the effect upon the executability of the decree or in other words new situation created by the change in law relates to execution of the decree. The decision of the Privy Council in AIR 1936 49 (Privy Council) , those of the Federal Court in AIR 1939 74 (Federal Court) and AIR 1941 5 (Federal Court) , do indicate that the Court can lake into account subsequent change in law which clearly affect the rights determined by the decree. But further question to be considered is can the executing Court do this. This question also appears to be answered in the case reported in Itikala Suryanarayanamurthy Vs. Redi Viranna, and Gurbasappa Mahadevappa Gunaki Vs. Neelkanthappa Shivappa Humberwadi, . In the former case a decree was passed on 30-9-1936. Thereafter certain payments were made on 25-1-1938, 23-2-1938 and 2-3-1938. In 1938 Madras Act No. 4 of 1938 was passed. It was contended on behalf of the judgment-debtor that the payment thus made ought to be reappropriated and readjusted having regard to the terms of Section 8 and priviso to Section 19 in spite of the fact the payments had been made either before or after the passing of the Act. This contention was accepted and the direction was given by the High Court in execution to do accordingly. In the second case plaintiff obtained a decree on 28-2-1945. Subsequent to this on 1-5-1945 Bombay Agricultural Debtor''s Relief Act was applied to the region in which the Court passing the decree was situated. The judgment-debtor applied for relief under that Act in execution. His claim was negatived by the trial Court by holding that he was not an agriculturist and by the first appellate Court on the ground that that the Civil Court had no jurisdiction to determine the said status. The question there considered was no doubt as regards jurisdiction but it seems to have been accepted without dispute that the executing Court has jurisdiction to take into account the position obtaining as to the rights of the parties due to change of law subsequent to the decree. This Court in AIR 1953 361 (Nagpur) (Full Bench held that decree for pre-emption obtained by the pre-emptor were no longer in execution on the ground that the person who sought to execute them has lost his proprietary interest in the land subsequent to the passing of the decree by Madhya Pradesh Abolition of Proprietary Rights Act of 1951. The decision clearly supports the view that the Court executing the decree also can take into account the subsequent change in law which either puts an end to the rights of the decree-holder or modifies them.

In the present case the contention of the Judgment-debtor is not only that the rights of the landlord decree-holder have come to an end by Section 4 of the Madhya Bharat Abolition of Jagirs Act but the judgment-debtor had become entitled to status of Pucca Tenant by Section 21 of the Act. This question was not considered by the executing Court on the ground that the executing Court had no jurisdiction to do so after the decree had become final more particularly when the said Act had been passed during the pendency of the suit. Since the decision referred to above do not justify such a view, the decision of the Court below ought to be set aside and the case ought to be remanded to the trial Court to consider this question on merits. The Court will have to consider the position (1) whether the rights of the decree-holder in the land have come to an end, (2) whether the judgment debtor has been conferred the rights of Pucca Tenant in the said land, and (3) in case the judgment-debtor is not conferred such rights can he plead the cessation of decree-holder''s right and their vesting in the third party (Jus tertii).

The result is that the appeal is allowed and the case is sent back to the executing Court for hearing and disposal in light of the observations made above. The appellant is entitled to his costs of this appeal from the respondent.