Sharda Sahu (Smt.) and Another vs Additional District Judge and Others

N.K. Mehrotra, J.—This is a petition for issuing a writ in the nature of certiorari quashing the impugned judgment and orders as well as formal orders dated 8.5.2003 and 28,3.2003 passed by the opposite parties Nos. 1 and 2 as contained in Annexure Nos. 1, 2, 3 and 4 respectively to this writ petition and also for issuing a writ in the nature of mandamus directing the opposite parties Nos. 1 and 2 to decide the issue of jurisdiction by issuing Commission or obtaining report from the Munsairam prior to proceeding in Execution Case No, 32 of 1976 pending in the Court of the Civil Judge, Mohan Lalganj, Lucknow.

I have heard the learned Counsel for the petitioners and the learned Counsel for the opposite party No. 3.

Suit No. 363 of 1956 filed by Chandrika Prasad and others (plaintiffs) was decided in favour of Chandrika Prasad by passing a decree and an Appeal No. 53 of 1963 was filed which was heard and decided by the Civil Judge, Lucknow on 22.1,1964. Babu Lal, the father of the opposite party No. 3 filed execution application before the Civil Judge, Mohan Lalganj, Lucknow. This is Execution Case No. 32 of 1976 pending in the Court of the Civil Judge, Mohan Lalganj, Lucknow. The petitioner filed objection u/s 47 of the Code of Civil Procedure, which was registered as Misc. Case No. 31-C/81.

The main contention of the petitioner-objectors against the execution of the decree is that the suit was of the jurisdiction of Munsif South and the appeal was heard and disposed of by the Civil Judge, Lucknow while the execution has been filed in the Court of the Civil Judge, Mohan Lalganj, Lucknow. The property in suit is situated in Kaiserbagh, Lucknow which comes within the jurisdiction of the Civil Judge, Lucknow and the Civil Judge, Mohan Lalganj, Lucknow has no jurisdiction to entertain the execution case. It was mandatory for the trial Court to issue commission or obtain report from the Munsarim regarding situation of the property to determine the jurisdiction of the Court. During the pendency of the objection, the petitioners moved an application for obtaining the Munsarim''s report and for issuing the commission to decide as to whether the property is situated within the jurisdiction of the Civil Judge (Junior Division), South or Civil Judge (Junior Division), Mohan Lalganj, Lucknow. The petitioners moved Application Nos. 176-C and 178-C. These applications are Annexure Nos. 9 and 10 to this petition. These applications were dismissed. The petitioners filed Revision Nos. 19 of 2003 and 28 of 2003 in the Court of the District Judge, Lucknow. The Revisional Court dismissed both the revisions on 8.5.2003 and held that there is no illegality in rejecting the applications by the Civil Judge. The contention of the petitioners is that the jurisdiction of different Court was settled by the Government Notification No. A-1104/VII-710-53, dated 12.4.1956 and the plea of jurisdiction can be raised in the objection u/s 47 C.P.C. dismissed. The petitioners filed Revision Nos. 19 of 2003 and 28 of 2003 in the Court of the District Judge, Lucknow. The Revisional Court dismissed both the revisions on 8.5.2003 and held that there is no illegality in rejecting the applications by the Civil Judge. The contention of the petitioners is that the jurisdiction of different Court was settled by the Government Notification No. A-1104/VII-710-53, dated 12.4.1956 and the plea of jurisdiction can be raised in the objection u/s 47 C.P.C.

Annexure No. 9 is the copy of the application moved under Order VI, Rule 17 C.P.C. alongwith Section 151 C.P.C. for carrying out amendment in the objection u/s 47 C.P.C. By the proposed amendment the objector requested to add a plea that the decrees passed by the Lower Court in original suit and the Appellate Court were null and void for want of territorial jurisdiction. Annexure No. 10, the copy of the Application No. 178-C in which the petitioners have prayed that they had moved an application on 28.2.2003 for the inspection of the disputed property by the Court or in the alternative to issue commission to report about the location of the property and therefore, a speaking order be passed on the earlier application dated 28.2.2003. The learned trial Court dismissed the Application No. 176-C on the ground that this application cannot be allowed because the objection was filed on 15.5.1981 and the proposed amendment has been filed at very belated stage and the costs awarded during the proceedings have not been paid and the intention of the objector is to delay the execution of the decree. Application No. 178-C was rejected on the ground that it has already been directed that earlier application with regard to jurisdiction shall be decided at the time of disposal of the objection and therefore, this Application No. 178-C for passing speaking order being not maintainable was rejected. After rejecting these two applications, the trial Curt fixed a date for hearing on the objection u/s 47 C.P.C. The revisions filed against these orders were dismissed on the ground that the trial Court has not committed any jurisdictional error and the trial Court was ceased of the matter with regard to validity of the decree and the issue of the jurisdiction, which shall be decided at the time of objection u/s 47 C.P.C.

After hearing both the learned Counsel for the parties, I am of the view that the issue of jurisdiction and the question as to whether the decree passed by the Court is a nullity, can be seen in the objection u/s 47 C.P.C. Therefore, even after the proposed amendment has been rejected and the payer for issuing commission to determine the situation of the disputed property has been rejected, these pleas are still open to the petitioners to raise at the time of hearing of objection u/s 47 C.P.C. So far as the question of issuing commission is concerned, the trial Court itself has directed that this matter shall be decided at the time of objection u/s 47 C.P.C. Therefore, no interference is required in the order passed on Application No. 178-C. So far as the order passed on Application No. 176-C is concerned, this order is not required to be quashed herein this writ petition because the petitioners have not paid for the costs awarded during the proceedings but it can be observed after hearing the contentions raised by the objector that the learned Court below shall decide the objection u/s 47 C.P.C. in the light of the decision in Merla Ramanna Vs. Nallaparaju and Others, , Vasudev Dhanjibbhai Modi v. Rajbhai Abdul Rehman and Ors., Seth Hiralal Patni Vs. Sri Kali Nath, , The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, , Pathumma and Others Vs. Kuntalan Kutty Dead by Lrs. and Others, , Vikas Motors Ltd. v. Dr. P.K. Jain 1999 (37) ALR 368, Th. Pancham Singh v. Rani Raj Rajeshwari Devi and Ors. 1970 A.L.J. 983, Prabhu Dayal Vs. Ram Nik Lal and Another, , Hira Devi and Others Vs. Harinath Chaurasiya and Others, , Shambhoo Shanker Awasthi v. Ram Gopal Tiwari 2000 (40) ALR 432, and Dhurandhar Prasad Singh v. Jai Prakash University and Ors. 2001 (44) ALR 579 (SC). No finding is being recorded about the validity of the objections raised u/s 47 C.P.C. in this writ petition because the objections u/s 47 C.P.C. are still pending before the trial Court. At this stage only this much is desire that the trial Court be directed to dispose of the objection u/s 47 C.P.C. within a period of eight weeks from the date of the copy of this order is produced before the Executing Court without granting any further adjournment to either party.

With the aforesaid directions, this writ petition is finally disposed, of.