Shaik Lal Basha vs Bonupalli Kalavathi
2023 Latest Caselaw 4720 AP

Citation : 2023 Latest Caselaw 4720 AP
Judgement Date : 6 October, 2023

Andhra Pradesh High Court - Amravati

Shaik Lal Basha vs Bonupalli Kalavathi on 6 October, 2023

                                      1




           THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                          C.R.P.No.3970 of 2016

ORDER:

Aggrieved by the orders dated 22.06.2016 passed in E.A.No.

305 of 2012 in E.P.No. 24 of 2011 in O.S.No. 4 of 2006 on the file

of the Court of Principal Junior Civil Judge, Srikalahasti, (in short

'the court below') the present revision is filed.

2. The petitioner herein is the J.Dr/defendant; respondent

herein is the D.Hr/plaintiff before the court below.

3. The petitioner herein has filed an application in

E.A.No.305 of 2012 in execution proceedings vide E.P.No.24 of

2011 under Section 47 of CPC seeking that the decree and

judgment passed in RCC No.4 of 2006, dated 01.09.2008 are null

and void and unexecutable. Upon considering the submissions of

both the counsel, the application has been dismissed by the court

below. Assailing the same, the present revision came to be filed.

4. Heard Mr. T. Janardhan Rao, learned counsel for the

petitioner and Mr. V. Sudhakar Reddy, learned counsel for the

respondent.

5. Learned counsel for the petitioner would contend that the

court below ought to have seen that the schedule site being

granted in DKT patta and the house being constructed by the

Government, the respondent, who is a beneficiary is not entitled to

file eviction suit under general law, which is binding on the terms

of assignment are governed by A.P. Assigned Lands (Prohibition of

Transfers) Act, 1977. Further the court below erred in dismissing

the petitioner that the contentions raised by the petitioner do not

fall under Section 47 as the question relating to execution,

discharge and satisfaction shall be determined only by the court

executing the decree and not by a separate suit. It is also further

contended that the court below ought to have seen that due to

mistake of advocate in conducting the rent control case, which was

decided exparte, does not preclude him from raising these grounds

by filing the E.A, as the grounds are legal objects and not factual.

Therefore the impugned order of the court below is based on mere

surmises, but not in accordance with law. Therefore the revision is

liable to be allowed.

6. Whereas learned counsel for the respondent reiterated the

contents urged before the court below and vehemently opposed to

allow the revision.

7. Perused the record.

8. During hearing learned counsel for the petitioner placed

on record the decision of the Hon'ble Apex Court in "Vasudev

Dhanjibhai Modi v. Rajabhai Abdul Rehman and Others"1,

wherein it was held as follows:

"5. In this case the suit for ejectment against Munshi was instituted by Modi in the Court of Small Causes. No objection was raised that the Court had no jurisdiction to entertain the suit. The objection was not raised even in appeal, nor before the High Court. The Trial Court dismissed the suit on merits: the decree was reversed by the District Court and that decree was confirmed by the High Court. The objection was raised for the first time when the decree was sought to be executed.

....

8. In the present case the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree. If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had

1 MANU/SC/0531/1970

passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding."

In "Sarwan Kumar and Others v. Madan Lal

Aggarwal"2, wherein it was held as follows:

"19...... It was further held that objection to the execution of the decree being a nullity having been passed by a court lacking inherent jurisdiction could be raised in execution proceedings and the finding recorded in decree that the civil court had the jurisdiction would not operate as res judicata. It was held:

"Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is nonest. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party.."

9. The above decision also discussed by the court below in

its order and held that the respondent herein i.e plaintiff filed RCC

2 MANU/SC/0083/2003

against the petitioner herein and of his tenancy and he is raising

at this stage that it is a Government building and the plaintiff/

D.Hr has no locus standi to file RCC as the decree and judgment

are null and void and not executable. Therefore the above case law

is no way helpful to the petitioner herein. No doubt, the court

below rightly discussed the case law cited supra along with other

case law submitted by both the parties before the court below.

Section 47 of CPC - Question to be determined by the Court executing decree- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

10. The petitioner is not at liberty to question the Judgment

and decree as null and void. Section 47 of C.P.C, no where it is

stated that the J.Dr is at liberty to question the judgment and

decree as null and void. The petitioner is having a right to file

appeal, instead of challenging the impugned order, but he has not

availed such remedy under order 9, rule 13 C.P.C.

11. Viewed from any angle, this Court finds any irregularity

or impropriety in the order of the court below, as there is no force

in the argument of learned counsel for the petitioner. It is made

clear that the decisions relied by the learned counsel for the

petitioner, which cited supra are not applicable to the facts and

circumstances of this case. Hence, the revision is liable to be