Niranjan Lal (Dead) vs Chhotey Lal

J.S. Sekhon, J.—This civil revision is directed against the order of Mrs. Anita Chaudhry, Sub Judge IInd Clsss, Gurgaon, dated 2nd November, 1981, dismissing the application for execution of the decree by accepting the objections of Chhotey Lal judgment debtor, to the effect that the decree having been passed by a Court having no pecuniary jurisdiction, is a nullity in the eye of law.

In brief, relevant facts for the disposal of this petition are that Niranjan Lal, plaintiff, filed a suit for possession of the disputed property against Chhotey Lal by evaluating it for the purposes of court fee and jurisdiction at Rs. 5000/-. The objection of the defendant that the suit should have been evaluated at Rs. 40,000/- for these purposes was accepted by the trial Court, i.e. Sub Judge III Class Gurgaon where the suit was pending. Ultimately, the suit was decreed on 27th March, 1981. The appeal filed by the defendant was dismissed by the District Judge on 18th August, 1981 in default. The decree-holder then filed an execution petition for delivery of possession of the disputed property, wherein the judgment-debtor filed objections u/s 47 read with section 151 of the CPC that the decree for Rs. 40,000/- passed by a Court having no pecuniary jurisdiction being nullity in the eye of law, was not executable. The decree-holder resisted the objection petition contending that it was not a nullity in the eye of law, because of the provisions of Section 21 of the CPC read with section II of the Suits Valuation Act, 1887, and it has not resulted in failure of justice.

The Executing Court allowed the objection of the judgment-debtor by holding that the decree passed by Sub Judge III Class, which has no pecuniary jurisdiction to try a suit worth Rs. 40,000/- being a nullity in the eye of law, was not executable by placing reliance on the findings of the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, .

The learned counsel for the petitioner contended that the lower Court has not understood the import of the findings of the Supreme Court in Kiran Singh''s case (supra) besides maintaining that the amended provisions of Section 21, sub-section (2) of the Code clearly provide that where no objection is taken to the pecuniary jurisdiction of a Court, the judgment and decree passed by it cannot be said to be a nullity unless there is a consequent failure of justice. The leaned counsel for the respondent, on the other hand, supported the findings of the lower Court by contending that due to non-filing of the court-fee on the amount of Rs. 40,000/- the decree would still not be executable.

The amended provisions of section 21 of the CPC read as under:-

Objections to jurisdiction:-(1) No Objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has beer a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.

Sub-section (2) of Section 21 was inserted by the CPC (Amendment) Act, 1976, which came into force with effect from 1st February, 1977. The objects and reasons given in clause 8 of the Amending Act runs as under:-

Clause 8 -Section 21 provides that objection as to place of suing is not to be allowed unless such objection was taken in the Court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice.

It often happens that the judgment of the Court is challenged in appeal or revision not only on the ground of place of suing but also on the ground of pecuniary jurisdiction of the Court. With a view to expediting the disposal of suits, a new sub-section, similar to the provisions of section 21, is being included in section 21 to the effect that objections as regards pecuniary jurisdiction should be raised at the earliest opportunity and, even if so taken, should not prove fatal unless there has been a consequent failure of justice.

6 Thus, obviously the intent of the Legislature was to curtail the (sic) of taking objection to territorial or pecuniary to the earliest possible opportunity and debarring a party from taking such objection in the Appellate or Revisional Court for the first time, unless it has resulted in failure of justice. As a matter of fact, there could not be any failure of justice if a suit triable by a Sub Judge I Class had been tried, by a Sub Judge III Class Admittedly, no objection was taken by the defendant regarding the pecmniary jurisdiction before the trial Court. The lower Court has taken a wrong view by holding that the provisions of section 21 of the CPC are applicable to the Appellate or Revisional Court and not to the Court executing the decree. Taking up such objections before the Appellate or the Revisional Court, stand on the better footing then before the executing Court, as the latter cannot go behind or beyond the decree passed by the trial Court.

The findings of the Supreme Court in Kiran Singh''s case (supra) relied upon by the trial Court rather support the case of the petitioner, as in that case the suit was Rs. 2,950/- for the purposes of Suits Valuation Act, which was dismissed. The appeal filed by the plaintiffs was also dismissed by the District Judge, the plaintiffs then went in regular second appeal before the Patna High Court and there for the first time, the Stamp Reporter raised the objection to the valuation of the plaint and after enquiry the Court determined that the correct value for the purposes of court-fee was Rs. 9,980/-. The appellant then paid the additional court-fee. Thereafter, he raised the contention that on the revised valuation, the appeal from the decree of the Subordinate Judge would lay not to the District Judge but to the High Court and that the regular second appeal should be heard as first appeal ignoring the judgment of the District Judge The Supreme Court dismissed this objection of the plaintiff-appellant by holding that it has not resulted in any prejudice and that they having themselves under-valued the suit before the trial Court and resorted to forum of his own choice cannot now be held that it has resulted in any prejudice. It was further held that the same principle has been adopted in the provisions of section 21 of the CPC with reference to the objection relating to the territoral jurisdiction. It is noteworthy that at that time there was no provision in the CPC regarding the taking up objection of pecuniary jurisdiction at the earliest opportunity.

A similar controversy regarding the decree being nullity because of over-valuation or under-valuation u/s 11 of the Suits Valuation Act, 1887 came under the consideration of this Court in Inder Singh v. Suba Singh (1956) 58 P.L.R. 195. Relying upon the findings of the Supreme Court in Kiran Singh''s case (supra), it was held that where the objection regarding the pecuniary jurisdiction of the Court was not taken at the earliest, the same cannot be taken before a Court executing the decree, unless it has resulted in failure of justice.

The findings of this Court in Narain Kumar v. Neki Ram 1984 (1) Rent. C.R. 362 also support the above referred view In that case, it was held that the objection regarding lack of pecuniary jurisdiction cannot be taken at the execution stage. In this regard the findings of the Supreme Court in Kiran Singh''s case (supra) were also relied upon.

No objection was taken by the judgment-debtor regarding the decree-holder having not paid the court-fee etc. on the value of the suit at Rs. 40,000/-. On the other hand, the perusal of the objection petition shows that the deficiency was made good by the plaintiff after the finding of the trial Court that the suit should be valued at Rs. 41,000/- for the purposes of court-fee and jurisdiction. Merely because there is report of the Ahalmad of the executing Court on the back of the execution application that the plaintiff was directed to make up the deficiency in the court fee within a period of 15 days from the passing of the decree, would be of no consequence to prove that such deficiency was not made good by the plaintiff decree-holder.

For the foregoing reasons, the impugned order of the lower Court is set aside by accepting this revision petition and dismissing the objection of the judgment-debtor. The application is sent back to the executing Court for disposing it in accordance with law after restoring it against its original number. The parties through their counsel are directed to appear before the trial Court on 17th August, 1988. In the peculiar circumstances of the case, there is no order as to costs.