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Attorney(S)
  • Sumerchand, for respondents
  • Hukamchand, for appellant;
Judges
  • Kailash Wanchoo
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Citation Codes
Equivalent Citations
citation codes
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Attorney(S)
  • Sumerchand, for respondents
  • Hukamchand, for appellant;
Judges
  • Kailash Wanchoo
Acts
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is an execution first appeal brought by the judgment-debtor Anraj against an order of the District Judge, Pali. The underlying facts in the opinion are:

  • Decree-holders (respondents Bijairaj and others) had filed a suit against Anraj and others for recovery of Rs. 19,151/-, and that suit was decreed on 26 July 1939 by the District Judge of Nagpur.
  • No appeal was taken from the 1939 decree, and it became final.
  • The decree was put in execution by the decree-holders in October 1949.
  • The judgment-debtors objected in the execution proceedings, contending that the decree was a nullity because they had previously been declared insolvent and were given an absolute discharge on 6 September 1943, and that this particular debt had been shown in the insolvency proceedings.
  • The executing court dismissed that objection; the present appeal challenges the dismissal of the objection in execution proceedings.

Legal Issues Presented

  1. Whether the objection that the decree is a nullity (on the ground of the appellants' prior absolute discharge in insolvency under Section 44 of the Insolvency Act) could be raised in execution proceedings in the circumstances of this case.

Arguments of the Parties

Appellant's Arguments

  • The judgment-debtors asserted that they had been declared insolvent and granted an absolute discharge on 6 September 1943.
  • They had shown the particular debt (the subject of the 1939 decree) in the insolvency proceedings as a debt provable in insolvency.
  • Because of that absolute discharge, they contended the District Court had no jurisdiction to pass a decree against them later (in execution context the decree under execution was a nullity).

Respondents' Arguments (Decree-holders)

  • The decree-holders argued that the point about absolute discharge had been specifically raised before the District Court which passed the decree, and an issue was framed on that point.
  • Despite that, the District Court passed a decree in favour of the respondents; that, the respondents argued, amounted to deciding the issue against the appellants.
  • The District Court had jurisdiction to decide that issue; accordingly the decree could not be a nullity, and the executing court could not go behind the decree and must execute it.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Jnanendra Mohan v. Rabindra Nath, 60 Ind App 71; AIR 1933 PC 61 States the well-known principle that an executing court cannot generally go behind a decree; only within very narrow limits (e.g., nullity due to lack of inherent jurisdiction) may it refuse execution. Adopted as the foundational principle governing whether an executing court may treat a decree as a nullity; other cases are treated as applications of this principle.
Mungul Pershad Dichit v. Girja Kant Lahiri, 8 Ind App 123 (PC) Illustrates that if a court with jurisdiction wrongly decrees a suit barred by limitation, that decree is valid until reversed; executing court cannot raise limitation as a defence to execution. Used to show how narrow the executing court's power to go behind a decree is, and that errors of law (e.g., wrongly deciding limitation) do not render a decree a nullity.
Abdul Majid v. Shamsherali Fakruddin, AIR 1940 Bom 285 Where a decree is passed contrary to Section 214 of the Succession Act (requiring succession certificate), omission is an error correctable on appeal and does not render the decree a nullity. Quoted to demonstrate that non-compliance with procedural or substantive statutory requirements (short of depriving inherent jurisdiction) does not make a decree void for the purpose of execution.
Radha Mohan v. Mrs. Jane Hilt, AIR 1945 All 400 Approved the view that decrees passed contrary to Section 214 of the Succession Act are not nullities and remain valid unless set aside on appeal. Referenced as confirming the principle in the previous Bombay decision and to support the narrow view of when a decree is a nullity.
Girwar Narayan v. Kamla Prasad, AIR 1933 Pat 104 Distinguishes inherent want of jurisdiction (which makes a decree a nullity) from want of jurisdictional questions to be determined by the court; only inherent want of jurisdiction renders the decree void. Applied to clarify that mere errors in deciding issues (e.g., limitation, res judicata) do not constitute inherent lack of jurisdiction; an example of inherent lack (exceeding pecuniary jurisdiction) was given.
Laxman Madhoji v. Dhamori Co-operative Credit Society, AIR 1933 Nag 211 Held that an executing court can refuse to execute a decree where the court that passed it had no jurisdiction, but such lack of jurisdiction must appear on the face of the decree or be ascertainable without further factual enquiry. Quoted to show that only clear, apparent lack of jurisdiction (patent on the decree) permits an executing court to treat a decree as void.
Intizamia Committee Gurdwara Darbar Sahib v. Central Bank of India Ltd., AIR 1938 Lah 129 Example of a tribunal under special statute (Punjab Sikh Gurdwaras Act) where absence of conditions precedent to jurisdiction renders its orders null and civil courts may scrutinize such decrees. Distinguished from the present case: these are special-tribunal cases where civil courts must ensure the tribunal acted within the statute; not applicable where a civil court itself passed the decree.
Abdul Ghani v. Anjuman-i-Imdad Qarza Bahami Chak No. 127 R.B., AIR 1942 Lah 237 Case under Co-operative Societies Act concerning powers of a liquidator; principle that tribunal decrees outside statutory conditions precedent are nullities. Grouped with other special-jurisdiction cases and distinguished from the present civil-court decree scenario.
Karashiddayya Shiddayya Bennur v. Shree Gaianan Urban Cooperative Bank Ltd., AIR 1943 Bom 288 Another co-operative society case where tribunal lacked statutory jurisdiction and resulting orders could be treated as nullities. Also distinguished as a special-jurisdiction case not applicable to a decree passed by a civil court of competent jurisdiction.
Uttamchand Motilalji v. Wasudeo Deorao Digambar, AIR 1946 Nag 311 Reiterates general rule that executing courts cannot question validity of decrees, but patent nullities or decrees passed without jurisdiction are examinable in execution. Accepted as stating the principle; the court observed the facts there fell within the patent-nullity exception and considered it covered by the earlier Privy Council authority.
Bhaduri's case (referred to as (A) in the opinion) Referenced by the court as the authority dealing with decrees passed on awards and the scope of executing court scrutiny (appears to be used as an exemplar of the patent-nullity exception). The court used the reference to show that cases where a decree is a patent nullity (e.g., award unregistered) fall within the narrow exceptions allowing execution scrutiny; distinguished from the present facts.

Court's Reasoning and Analysis

The court proceeded in the following analytical steps, relying strictly on the principles and authorities cited in the opinion:

  1. The court stated the settled general rule: an executing court must take a decree as it stands and cannot ordinarily go behind it to question its correctness; the decree is binding between the parties unless set aside by appeal, revision, or other appropriate proceedings. (See Jnanendra Mohan v. Rabindra Nath.)
  2. The court acknowledged the well-established narrow exception: where the court that passed the decree lacked inherent jurisdiction, or for some other reason the decree is a nullity, the executing court must refuse to execute. The court cited authorities illustrating the narrowness of that exception (Mungul Pershad Dichit; Girwar Narayan; Laxman Madhoji).
  3. The opinion surveyed precedent showing that mistakes of law or procedural omissions (for example, decreeing a suit barred by limitation; decreeing contrary to Section 214 of the Succession Act) are errors correctable on appeal and do not, by themselves, make a decree a nullity for execution purposes (Mungul Pershad Dichit; Abdul Majid; Radha Mohan).
  4. The court highlighted the distinction between orders of special tribunals (where lack of statutory conditions precedent may render the tribunal's decree a nullity and civil courts must scrutinize whether the tribunal acted within its statutory four corners) and decrees of ordinary civil courts exercising their inherent jurisdiction (Intizamia Committee case and other tribunal cases). The tribunal cases were held not applicable to the present situation because the present decree was passed by a civil court.
  5. The court examined Section 44 of the Insolvency Act (as described in the opinion): sub-section (1) lists debts not released by discharge; sub-section (2) provides general discharge from debts provable under the Act; sub-section (3) contains exceptions. The court observed that nothing in Section 44 bars a civil court from entertaining and deciding a suit provided it has inherent jurisdiction.
  6. Applying these principles to the facts, the court concluded that Section 44 is a defence available to a defendant (similar to defences such as limitation or res judicata or the Succession Act defence) and does not in itself raise a question of inherent jurisdiction of the District Court of Nagpur. The District Judge at Nagpur had sufficient pecuniary and territorial jurisdiction to try the suit.
  7. The court noted that the appellant had indeed raised Section 44 before the District Court and a specific issue was framed, but the issue was not specifically decided; despite that, the District Court proceeded to pass a decree against the appellant. The court reasoned that the appropriate remedy in such circumstances was an appeal or revision to correct the error, not to treat the decree as a nullity in execution proceedings.
  8. Consequently, the executing court was correct in holding that the kind of objection raised (that the decree was a nullity because of the earlier insolvency discharge) could not be entertained in execution proceedings on the facts of this case.

Holding and Implications

Holding: The appeal is DISMISSED.

Direct consequences for the parties:

  • The dismissal upholds the executing court's refusal to treat the 1939 decree as a nullity in execution proceedings on the grounds advanced by the appellants.
  • The appellant's proper remedy, according to the court, was to pursue appeal or revision against the District Court's judgment rather than seek to defeat execution by asserting the defence in execution proceedings.
  • The court awarded costs to the decree-holder respondents.

Broader implications: The opinion applies established authorities and reiterates the narrow limits in which an executing court may go behind a decree (patent nullity or inherent lack of jurisdiction). The court did not announce a novel principle but applied settled law to the facts before it.

Show full summary ...

    Anraj v. Bijairaj

    1. This is an execution first appeal by the judgment-debtor Anraj against the order of the District Judge, Pali.

    2. The facts, which have led to this appeal, are these:

    3. Decree-holder respondents Bijairaj etc., had filed a suit against Anraj and others for recovery of Rs. 19,151/- This suit was decreed on the 26th of July, 1939, by the District Judge of Nagpur. There was no appeal by the defendants in the suit, and that decree has become final. The decree was put in execution by the decree-holders respondents in October, 1949. Thereupon, an objection was raised by the judgment-debtors that the decree was not capable of execution as it was a nullity. That objection has been dismissed, and the present appeal is against the dismissal of that objection.

    4. The grounds, on which the objection was made, were these:

    5. The judgment-debtors contended that they had been declared insolvent by a court at Bangalore, and had been given an absolute discharge on the 6th of September, 1943. In those insolvency proceedings they had shown this particular debt which was the basis of the decree under execution as this was a debt provable in insolvency; and as they were discharged absolutely in 1943, the District Court had no jurisdiction to pass a decree against them in 1949, and the decree was a nullity.

    6. The decree-holders, however, contended that the point that the suit was not maintainable because of the absolute discharge granted by the court at Bangalore was specifically raised before the District Court which passed the decree under execution, and in spite of there being an issue on the point the District Court in question passed a decree in favour of the respondents. This amounted to deciding the issue raised against the appellants. The District Court, which passed the decree in 1949, had jurisdiction to decide that issue, and the decree under the circumstances could not be a nullity. As such the executing court could not go behind the decree, and must execute it.

    7. The first question, therefore, that arises for determination in this appeal is whether the point, which has been raised, could be raised at all in execution proceedings in the circumstances existing in this case.

    8. The law on the point is well settled. The general rule is that an executing court cannot go behind a decree. It must take the decree as it is, and proceed to execute it. The decree might have been correctly passed, or it might be erroneous or npt according to law, but it is none-theless binding on, and conclusive as between, the parties, unless set aside on appeal, revision or other appropriate proceedings. The function of the executing Court is to enforce and execute it and not to question its correctness. To this general rule, however there is a well-established exception that if there was a lack of inherent jurisdiction in the Court which had passed the decree, OT for some other reason the decree is a nullity, the executing court must refuse to execute it.

    It is not necessary to refer to authorities in detail in support of this summary of the law relating to the power of the executing court to go behind the decree. It is enough in this connection to cite the well-known decision of the Privy Council in 'Jnanendra Mohan v. Rabindra Nath', 60 Ind App 71: (AIR 1933 PC 61) (A). All other cases are merely an application of the principle laid down in this case, and it is a question for consideration in each case whether a decree can be held to be a nullity by the executing court. It is only within certain very narrow limits that the executing court has got this power. We may refer to the following cases to consider the limits of this power.

    9. The earliest case is 'Mungul Pershad Dichit v. Girja Kant Lahiri', 8 Ind App 123 (PC) (B), where their Lordships of the Privy Council observed as follows:

    "A Judge in a suit upon a cause of action "is bound to dismiss the suit, or to decree for the Defendant, if it appears that the cause of action is barred by limitation. But if instead of dismissing the suit he decrees for the Plaintiff, his decree is valid, unless reversed upon appeal; and the defendant cannot, upon an application to execute the decree, set up as an answer "that the cause of action was barred by limitation."

    This case is an illustration which shows how narrow is the power of the executing court to go behind the decree. Section 3 of the Limitation Act lays down that it is the. duty of the court to dismiss a suit if it is barred by limitation; but in spite of that provision of the law if a court having jurisdiction wrongly decrees the suit, the decision is merely erroneous, and the mistake does not affect the jurisdiction of the court.

    10. The next case, to which reference may be made, is Abdul Majid v. Shamsherali Fakruddin, AIR 1940 Bom 285 (C). That was a case where a suit had been decreed by the court in spite of the provisions of section 214 of the Succession Act. Section 214 provides that no court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, except on the production, by the person so claiming, of, amongst other things, a succession certificate.

    But in spite of this provision a decree was passed. It was then challenged in execution that the decree was a nullity because it was passed against the provisions of section 214 of the Succession Act. The Bombay High Court held that that was not so, and the following observations appear at page 286-

    "If the Court does, in breach of those provisions, improperly receive documents in evidence, that is an error which can be corrected in appeal, but it does not render the decree a nullity. In the same way the omission to obtain a succession certificate is good ground of appeal, but if the decree is not appealed from, in my opinion it remains a valid decree and cannot be regarded as a nullity."
    .

    11. Another case to which reference may be made is 'Radha Mohan v. Mrs. Jane Hilt', AIR 1945 All 400 (D). There also a decree had been passed against the provisions of section 214 of the Succession Act and the view taken by the Bombay case (C) cited above was approved.

    11-a. In Girwar Narayan v. Kamla Prasad, AIR 1933 Pat 104 (E), the distinction between an inherent want of jurisdiction and want of jurisdiction on grounds which have to be determined by the Court itself is pointed out, and it is only when there is inherent want of jurisdiction that it can be said that the decree was a nullity. For instance, if a Munsif decrees a suit of Rs. 5,000/- in value when his pecuniary jurisdiction is only Rs. 2,000/-, there is an inherent want of jurisdiction and the decree is a nullity and can be ignored by the executing court. On the other hand, if a court proceeds to try a suit which is barred for instance by the principle of res judicata. however erroneous the decree of the court may be, it cannot be challenged in execution.

    12. Lastly, we may refer to Laxman Madhoji v. Dhamori Co-operative Credit Society, AIR 1933 Nag 211 (F), where it was held that an executing Court was entitled to refuse to execute the decree in particular cases if the Court which passed the decree had no jurisdiction to pass it. But the fact of the Court having no jurisdiction to pass a decree ought to appear on the face of the decree or must be capable of being gathered without the necessity of an enquiry into facts.

    13. An examination of these cases reveals that it is only within very narrow limits that an executing court can go behind a decree and these limits are where there is inherent lack of jurisdiction, or where for some reason, as for example when a decree is passed against a dead person, the decree becomes a nullity. If a point is raised as a defence to a suit, and the defence does not affect the inherent jurisdiction of the court to try the suit the decree cannot be a nullity. A mistake by the court in disposing of the defence would not render the decree a nullity. It will tote a valid decree, though it might be set aside on proper proceedings by way of appeal or revision.

    14. Learned counsel for the appellant relied on certain cases to which we may briefly refer. These are, however, all cases of special jurisdiction vide-

    Intizamia Committee Gurdwara Darbar Sahib v. Central Bank of India Ltd., Amritsar AIR 1938 Lah 129 (G). This is a case of Punjab Sikh Gurdwaras. Act which conferred a special jurisdiction on the Sikh Gurdwara Tribunal. Abdul Ghani v. Anjuman-i-Imdad Qarza Bahami Chak No. 127 R.B., AIR 1942 Lah 237 (H). It was a case of Co-operative Societies Act and the powers given to the liquidator. Karashiddayya Shiddayya Bennur v. Shree Gaianan Urban Cooperative Bank Ltd., AIR 1943 Bom 288 (I). It was also a case of a co-operative society and the power given to the Registrar. In these cases it was held that if the conditions precedent to the exercise of jurisdiction by these tribunals were not present, the decree would be a nullity, and it would be open to the civil court, whether in a suit or in execution proceedings even if the orders passed by the tribunals were made executable as civil court decrees, to go behind the decrees. The reason for this is obvious. It is the civil court which has the power to deal with civil matters under Section 9 of the Civil Procedure Code.

    Any other tribunal derogates from the powers of the civil court to deal with civil matters, and if the decree of that tribunal is made executable by the civil court, the civil court is bound to see whether the tribunal had passed the decree within the four corners of the law giving it jurisdiction. These cases, therefore, have no application to the present case which was decided by a civil court.

    15. The last case to which reference was made on behalf of the appellant is Uttamchand Motilalji v. Wasudeo Deorao Digambar, AIR 1946 Nag 311 (J). In this case it was held that the executing court, as a general rule, was not entitled to question the validity of a decree. But where it was patent that the decree was in fact passed without jurisdiction or was a nullity the executing Court was entitled to question the validity of the decree. There can be no objection to the statement of the principle in this case.

    The facts were that a certain award was made a. rule of the court without its being registered. The learned Judges held that a Full Bench of the Court had decided that no award relatine to immovable property could be made a rule of the court without its being registered, and therefore the decree passed on the award was a nullity. That is a case which to our mind is covered by the terms of Bhaduri's case (A) which also dealt with a decree passed on an award, the only difference being that here the Nagpur High Court referred to its own decision on the point of law instead of the provisions of the Code of Civil Procedure.

    16. Let us now turn to the circumstances of the present case in the light of these principles. The argument on behalf of the appellant is that the trial court lacked inherent jurisdiction inasmuch as it decreed a suit which should not have been decreed in view of the provisions of Section 44 of the Insolvency Act. Thus put, the argument is on the face of it impossible to uphold for there can be no question of lack of inherent jurisdiction in the District Court at Nagpur simply because it did not decide an issue as to the application of Section 44 of the Insolvency Act.

    What after all is Section 44 of the Insolvency Act? It provides for the effect of an order of absolute discharge. Sub-section (1) lays down that an order of discharge shall not release the insolvent from certain debts specified therein. Then comes Sub-section (2) which says that save as otherwise provided by Sub-section (1), an order of discharge shall release the insolvent from all debts provable under this Act. Then comes Sub-section (3) which also provides for an exception to Sub-section (2).

    There is nothing in Section 44, which bars the jurisdiction of a civil court to entertain a suit and decide it provided it has the necessary inhe rent jurisdiction. It is not in dispute that the District Judge of Nagpur had the inherent juris diction to decide this suit for it had sufficient pecuniary powers and had territorial jurisdiction also. It seems to us therefore that section 44 of, the Insolvency Act could only be urged as a de fence by a defendant, and it does not in any way raise the question of the inherent jurisdiction! of the court.

    A defence under Section 44 is, to our mind, not different from a defence, say of limitation, or of res judicata, or under Section 214 of the Indian Succession Act. Such a defence, if raised, will be decided by the court where the suit is pending. If the decision is wrong, or if for some reason or other no decision is given as seems to be the case in the present case, the remedy of the person who complains against the decision is to file an appeal or revision or take such other action as the law may provide to correct the error. But he cannot say that the decree is a nullity in execution proceedings for there is no question involved of the inherent jurisdiction of the court to pass the decree.

    17. It may also be mentioned that the defence under Section 44 also involves questions of facts, namely that the case does not come within the exceptions contained in Sub-section (1) and Sub-section (3), and that the debt was of such a nature as could be proved in insolvency proceedings.

    18. In this case, we find that the appellant had raised the defence of Section 44 of the Insolvency Act before the District Court at Nagpur, and a specific issue was framed on this point. For some reason which is not clear this issue was not specifically decided. But the court proceeded to pass a decree against the appellant. The remedy of the appellant under the circumstances was to appeal against the judgment of the District Court for a first appeal lay to the High Court.

    There was no question of want of inherent jurisdiction of the court, and the decree could not, under the circumstances, be treated as a nullity by the executing court, and such a point could not be raised in the executing court in the circumstances of this case. We are, therefore, of opinion that the executing court was right in the view that that kind of objection could not be taken before it.

    19. We, hereby, dismiss the appeal with costs to the decree-holder respondents.

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    Comments

    Anraj v. Bijairaj
    (Oct 24, 1956)