Tika Ram and Others vs Tula Ram

Kulwant Sahay, J.—This is an appeal by the decree-holders against an order of the Subordinate Judge of Haz-aribagh allowing an objection u/s 47, Civil P.C., to the execution of a mortgage-decree and deciding that the decree under execution was not execur table against one of the judgment-debtors named Tula Ram.

In order to understand the nature of the objection and the arguments addressed to us it is necessary shortly to set out a few facts. One Nilkanth Ram, who was the karta of a joint Hindu-family, executed a mortgage bond dated 25th June 1906 in favour of Bulaki Ram and his son Ghanshyam Ram for a. consideration of Rs. 2,000. In 1919 we find that both the mortgagor and the mortgagees were dead and in that year a suit was instituted in which Tika-Ram and Lalji Ram, the sons of Ghanshyam Ram, and other members of their joint family, were the plaintiffs and the representatives of Nilkanth Ram were the defendants. The suit was on the foot of the mortgage bond of 1906, and the persons who were made defendants-were the four sons of Nilkanth Ram (who were defendants 1 to 4) and the grandsons and great-grandsons of Nilkanth Ram (who were defendants 5 to 28). Of the four sons of Nilkanth Ram, Tula Ram was described in the plaint thus:

4, Tula Ram, son of Nilkanth Ram deceased, a lunatic under the guardianship of Thakur Ram, brother and guardian of the said lunatic.

this Thakur Ram being the first defendant in the suit. Of the remaining defendants a large number were minors. They were the sons of the four brothers Thakur Ram, Bhuneshwar Ram Bodhi Ram and Tula Ram, who were defendants 1 to 4 or their grandsons. In the plaint they were described as minors and certain persons were proposed as their guardians. There were other defendants in the suit and they were impleaded as such on the allegation that they were subsequent mortgagees, but it is not necessary to deal with them. The plaint was filed describing the parties as stated above. The Court admitted the plaint by its order dated 23rd July 1919 and ordered the issue of summonses to the defendants and notice to the minors and proposed guardian.

We find from the order sheet that although affidavit in proof of service was filed the Court was not satisfied with the service of the summonses and notices and by its order dated 17th September 1919 ordered the issue of fresh summonses to all the defendants except defendants 29 and 30 who had entered appearance. Thereafter it appears from the order dated 20th January 1920 that the plaintiffs prayed for re-issue of summonses against the defendants, and the Court directed the re-issue of summonses. The order-sheet of 12th February 1920 shows that affidavit in proof of service of summonses was filed and the Court was evidently satisfied with the service and directed the affidavit to be kept with the record. As the proposed guardians of the minor defendants did not appear or express their willingness to be appointed as such, the Court by its order dated 23rd February 1920 appointed one Babu J.R. Mitra pleader as guardian ad litem of the minor defendants.

It appears from the order-sheet of 12th March 1920 that the pleader guardian prayed for time to file written statement as he had not got any instructions till then from the natural guardian, and the Court allowed the prayer and adjourned the suit to 22nd March 1920. On this latter date the written statement was filed by the guardian ad litem of the minor defendants in which the plaintiffs were put to proof as regards the due execution of the mortgage as well as the passing of the consideration, and it was contended that the debt, if at all contracted, was not for the benefit of the minors or for legal necessity of the family and that the interest claimed was excessive. The learned Subordinate Judge framed issues on the objections taken on behalf of the minors and held that the execution of the mortgage bond as well as the passing of the consideration had been proved. He also found that Nilkanth Ram was the karta of the joint family consisting of himself, his sons and his grandsons and great-grandsons, and that out of the sum of Rupees 2,000 the mortgage was for legal necessity of the family only to the extent of Rs. 1,376-5-6 and it was valid to that extent only, and further held that the rate of interest was not penal. The Court accordingly made a mortgage decree in favour of the plaintiffs against all the defendants for a sum of Rupees 1,376-5-6 as principal besides interest and proportionate costs.

It will be noticed that there is nothing in the order-sheet to show that any guardian was appointed for Tula Ram who was defendant 4 in the suit and was described in the plaint as a lunatic under the guardianship of his brother Thakur Ram, and Thakur Ram did not appear in the suit in either capacity.

After two previous abortive applications for execution the present application was made by the decree-holders on 16th July 1927. One of the judgment-debtors viz. Parbhu Ram, filed an objection u/s 47 on his own behalf and. on behalf of his lunatic father Tula Ram. The objections were that Parbhu Ram was described in the suit as a minor, but, as a matter of fact, he was major; and secondly that no guardian ad litem had been appointed for the lunatic Tula Ram, and that, therefore, so far as these two judgment-debtors were concerned the decree was "invalid in law" and it was prayed that one-fourth share of the mortgaged property, being the share of TulaRamand Parbhu Ram, might be exempted from the decree and the execution sale.

The learned Subordinate Judge has by his order under appeal disallowed the objection of Parbhu Ram on a finding that it has not been shown that he was major on the date of the suit. As regards his lunatic father Tula Ram the learned Subordinate Judge has allowed the objection on the ground that the certified copies of the plaint and the order-sheet showed that there was no order appointing any curator of Tula Ram, who was impleaded as a lunatic. The learned Subordinate Judge refers to the fact that Thakur Ram was proposed in the plaint aa his curator; but he observes that the Court does not appear even impliedly to have appointed him as such in the suit. He therefore found that Tula Ram was not represented in the suit and that therefore the decree was not binding on him. Two questions have been raised on behalf of the appellants: First, that the Court executing the decree could not go behind the decree and determine the question relating to the validity of the decree as against any of the judgment-debtors, and secondly, that if Tula Ram be held not to be is party to the decree on the ground that he was not properly represented in the suit then he has no locus standi to take any objection to the execution of the decree u/s 47, Civil P.C.

The broad proposition of law that a Court executing a decree is bound to take the decree as it stands and is not competent to determine the question relating to the validity or the correctness or the propriety of the decree, is not disptued on behalf of the respondents. The learned advocate for the respondents, however, contends that it is open to the Court executing the decree to refuse to execute it if it finds that the decree was a nullity. In my opinion this contention of the learned advocate for the respondent cannot be doubted.

It has been held by a Full Bench of this Court in Jangli Lall v. Laddu Ram Marwari [1919] 4 P.L.J. 240 that a decree can be objected to in execution proceedings on the ground that it is a nullity. In that case the decree had been made in mortgage suit at a time when one of the defendants was dead and his representatives had not been brought on the record. In execution the decree was sought to be executed against the representatives of the deceased defendant who raised the objection that the decree was a nullity on the ground that had been passed against a dead man. The Full Bench held that such an objection could be taken in the Court executing the decree. The same view was taken by a later Full Bench of the Calcutta High Court in Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, where it was held that where the decree presented for execution was made by a Court which apparently had not the jurisdiction whether pecuniary, or territorial, or in respect of the judgment-debtor''s person to make the decree, the executing Court was entitled to refuse to execute the decree on the ground that it was made without jurisdiction.

The point for consideration therefore in the present case is whether the decree under consideration in so far as Tula Ram was concerned was a nullity. In this connexion it is important to bear in mind the distinction between a decree which is void or is a nullity and a decree which is merely voidable. A decree can be said to be void where there was a total want of jurisdiction in the Court to pass it. If the Court had no jurisdiction to entertain the suit, it cannot possibly have juisdiction to pass a decree in the suit. If, however, the Court had jurisdiction to entertain the suit but acted irregularly or illegally in the exercise of the jurisdiction, the decree passed by it may be erroneous or illegal but cannot be said to be without jurisdiction.

The jurisdiction of a Court may be determined with reference to its territorial jurisdiction, its jurisdiction over the subject-matter of the suit, its pecuniary jurisdiction, and its jurisdiction over the persons impleaded in the suit. In so far as the first three kinds of jurisdictions are concerned it is conceded in the present case that there was no lack of jurisdiction so far as the Court was concerned. It is, however, contended that there was a lack of jurisdiction in so far at least as one of the parties to the litigation was concerned, viz., Tula Ram. The argument was that the Court had no jurisdiction to pass a decree against a lunatic without taking steps for the appointment of his guardian under the provisions of Order 32, Civil P.C. In order to determine this question we have first to examine whether Tula Ram was properly brought before the Court. u/s 20, Civil P.C., the suit could be instituted in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resided at the time of the commencement of the suit. It is not denied that Tula Ram was actually residing within the local limits of the jurisdiction of the Court at the time of the commencement of the suit. Order 7, Rule 1, prescribes the particulars to be contained in the plaint and Clauses (c) and (d), Rule 1, direct that the plaint shall contain the name, description and place of residence of the defendant so far as they can be ascertained and where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect. Therefore, the requisitions in order to give jurisdiction to the Court so far as the persons sued against ware concerned were existing in the present case. The defendant Tula Ram was residing within the local limits of the jurisdiction of the Court and he was described as a porgon of unsound mind.

Order 32, Rule 3(1) prescribes that where the defendant is a minor the Court on being satisfied of the fact of his minority shall appoint a person to be guardian for the suit for such minor, and then the mode of appointment is prescribed in Rs. 3 and 4. Rule 15 prescribes that the provisions/contained in Rs. 1 to 14 in so far as they are applicable shall extend to persons adjudged to be of unsound mind. Therefore the procedure as regards the appointment of a guardian for a lunatic is the same as that for a minor. Now, the procedure prescribed in Order 32 is a procedure which the Court has to adopt in the exercise of its jurisdiction after entertaining a suit. That does not in any way affect the jurisdiction of the Court to entertain the suit. Once the Court has validly assumed jurisdiction, subsequent irregularity or illegality in the exercise of its jurisdiction does not in any way affect the original assumption of jurisdiction.

It has no doubt been held that if a minor defendant is not properly represented in a suit a judgment rendered in that suit is not binding upon him; in other words, it would be void in so far as he is concerned. But in order to find whether a minor is properly represented in a suit or not, one has merely to look to the proceedings in the suit. If a minor or a lunatic is properly described in the plaint and if a guardian is nominated for him the Court has jurisdiction to entertain the suit and to take further proceedings in the suit in accordance with the provisions contained in the Code of Civil Procedure.

In the well-known case of Walian v. Banke Behari Pershad Singh [1903] 30 Cal. 1021 it was laid down by the Privy Council that if the minor was effectively represented; in the suit the lack of a formal order appointing a guardian would only amount to an irregularity of procedure which would not be fatal to the suit. In that case the mother of the minor defendant was named as his guardian in the plaint.

No formal appointment was made of the mother as the guardian, but her name appeared throughout the proceedings as the guardian ad litem. It was found that the minor was effectively represented by the guardian and, therefore, a decree rendered in the suit was binding on the minor. In that suit the mother did not as a matter of fact appear on behalf of the minor and contest the suit. Their Lordahips, however, observed:

An examination, however, of such proceedings in that suit as are forthcoming shows that the Court admitted the plaint in which the mother was described as guardian, that in its decree it so described her, and that similar language was used in the execution proceedings.

Further on their Lordships observed as follows:

The present plaintiffs were substantially sued in the former suit, and the alleged fraud has been negatived. It appears to their Lordships that they were effectively represented in that suit by their mother, and with the sanction of the Court.... There is nothing to suggest that their interests were not duly protected. The only defects which can be pointed out are that no formal order appointing the mother of the now plaintiffs to be their guardian ad litem is shown to have been drawn up, and that it is not definitely shown that any attempt was made to serve the summons in the former suit upon the infants personally, or upon their mother, a pardanashin lady, before serving it upon Gajadhur, the only adult male member and the karta of the family. It has not been shown that the alleged irregularities caused any prejudice to the present plaintiffs, nor indeed could there well be any, since it has been found that the original debt was one for which the present plaintiffs were liable.

Now, from the quotation made above it is clear that what is necessary to see is whether the lunatic in the present case was effectively represented in the suit by his elder brother Thakur Ram and with the sanction of the Court. The fact that his name appeared in the plaint as well as in the decree goes to show that Thakur Ram represented the lunatic in the suit with the sanction of the Court. In this case, as in Walian''s case [1903] 30 Cal. 1021, there was no formal order appointing Thakur Sam as the guardian, but in this case, as in Walian''s case [1903] 30 Cal. 1021, there is nothing to suggest that the interests of Tula Ram were not duly protected. He was one out of a large number of defendants who were all members of a joint family. His interest was the same as the interests of his three other brothers and his sons. Summonses were repeatedly issued to all the defendants and the Court was satisfied that the defendants had been properly served. The other brothers, in spite of service of summons raised no objection and did not contest the suit. The minor members of the family, who were the sons or the grandsons of one or other of the four brothers, were represented by a pleader guardian. It appears from the order sheet that the pleader guardian filed written statement on behalf of the minors after receiving instructions from their natural guardian. These natural guardians were the three brothers of Tula Ram. Under their instructions the pleader guardian filed a written statement taking such objections as could possibly have been taken by the members of the joint family and succeeded in reducing the claim from Rs. 2,000 to Rs. 1,376 odd. It is impossible to conceive that Tula Ram, had he been otherwise represented by a guardian duly appointed by Court, as for instance his son was, could have taken any other defence which was not taken on behalf of the minor defendants.

It is, therefore, clear that it has not been shown that the alleged irregularity in not drawing up a formal order of appointment of a guardian caused any prejudice to the lunatic. The case therefore falls within the principle laid down by the Judicial Committee in Walian''s case [1903] 30 Cal. 1021, and the only question for consideration is whether or not the lunatic was effectively represented in the present case. I am of opinion, having regard to the facts of the case that he was effectively represented and the decree rendered in the suit was not without jurisdiction. It may be pointed out that in several cases it was assumed that the guardian in Walian''s case [1903] 30 Cal. 1021 actually appeared in the suit on behalf of the minor; but as has been pointed out by Das, J., in Satdeo Narayan v. Ramayan Tewari AIR 1923 Pat. 242 she did not as a matter of fact at all appear in the suit. Her name appeared in all the proceedings in the suit, but she did not enter appearance and contest the suit. If I may be allowed to respectfully say so, I entirely agree with Das, J., in the view taken by him in Satdeo Narayan v. Ramayan Tewari AIR 1923 Pat. 242.

Reference has been made on behalf of the respondent to several cases where it was held that when a minor is not duly represented in the suit the decree rendered in the suit is a nullity in so far as he is concerned; and the cases of Khirajmal v. Daim [1904] 32 Cal. 296 and Ors. cases following the same have been referred to. In Khirajmal''s case [1904] 32 Cal. 296 also what the Privy Council held was that if an estate was not represented in law or in fact the sale thereof was without jurisdiction and null and void. Here also the question was whether there was an effective representation of the estate. If there was an effective representation, then the decree rendered is not void. In the present case there is nothing to show that Tula Ram was not effectively represented in the suit and on the other hand it appears that every defence possibly open to him had been taken on behalf of the other members of his family, and he was in no way prejudiced. I am therefore of opinion that the decree rendered in the suit was not a nullity. It follows that the Court executing the decree could not go behind the decree and examine the validity thereof.

In the next place, assuming that Tula Ram was not properly represented in the suit the effect would be that he was not a party to the suit: and if he was not a party to the suit, then he had no locus standi to object to the execution of the decree trader'' Section 47, Civil P.C., That section only entitled the parties to the suit or their representatives to raise questions relating to the execution, discharge or satisfaction of the decree. All the cases referred to by the learned advocates are cases in which the validity of the decree was impeached in a regular suit and not in proceedings relating to the execution of the decree. The only case cited at the Bar in which such an objection was raised in the execution of the decree was the case of Kalipada Sirkar v. Hari Mohan Dalai [1916] 44 Cal. 627. That was a case where a suit was instituted on behalf of a lunatic by his wife who was herself a minor. On an objection taken by the defendant that the frame of the suit was bad, the Court dismissed the suit and awarded costs to the defendant. In execution of the decree for costs the objection was taken that the decree was bad inasmuch as it had been passed against a lunatic who was not properly represented in the suit. It was held by Mookerjee and Cuming, JJ., that the validity of the decree could not be questioned in execution proceedings on the ground that as the lunatic plaintiff was not properly represented by a competent next friend in the suit, no decree for costs could have been made against her. The Court executing the decree must take the decree as it stands and has no power to go behind the decree, or entertain an objection to the legality or correctness of the decree and it was pointed out by their Lordships that the proper procedure by which the decree could be attacked was by way of an application for review to the Court which made it, or by way of an appeal or application for revision to a superior tribunal or by way of a regular suit in a Court of competent jurisdiction, but the Court which made the decree cannot, when called upon to execute it, be invited to hold that the decree was erroneously or improperly made.

Therefore of opinion that the view taken by the learned Subordinate Judge cannot be sustained. His order therefore must be set aside: and the objection of Tula Ram to the execution of the decree be dismissed with costs throughout.

Macpherson, J.

I_agree with the order proposed. I do so On the second of the grounds set out by my learned brother. That ground is not in conflict with the decision in Jangli Lal v. Laddu Ram Marwari [1919] 4 P.L.J. 240, where the judgment-debtor was a party to the suit. Accordingly I do not find it necessary in this appeal to express an opinion on the question whether the decree is a nullity or as to the view expressed in Satdeo Narayan v. Ramayan Tiwari AIR 1923 Pat. 242 as to the effect of the decision of their Lordships of the Judicial Committee in Bibi Walian v. Banke Bihari Prasad Singh [1903] 30 Cal. 1021.