Bombay High Court
M/S. Prem Brothers Infrastructure Llp, ... vs Narendra S/O. Keshaorao Khonde And ... on 22 September, 2025
2025:BHC-NAG:9523
WP 4964 of 2023 - Judgment.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4964/2023
PETITIONERS : 1. M/s. Prembrothers Infrastructure LLP
Through its authorized representative Mr. Ashok
S/o. Rameshwarlal Agrawal, Office Add: 11,
First Floor, Lajpat Nagar-IV, Ring Road,
New Delhi -110024.
2. M/s. DJ Sons Hospitality
Through its authorized representative Mr. Ashok
S/o. Rameshwarlal Agrawal, Office Add: Flat
No. 201, Surya Kiran Building, 19 K.G. Marg,
New Delhi - 110001.
...VERSUS...
RESPONDENTS : 1. Narendra s/o Keshaorao Khonde
(Ori. Plaintiff) Age : Major, Occ: Private
(Ori. Plaintiff) 2. Durgabai wd/o Keshaorao Khonde
Age : Major, Occ: Housewife
(Ori. Plaintiff) 3. Usha d/o. Keshaorao Khonde,
Age : Major, Occ: Housewife.
All 1 to 3 R/o. Mouza-Borgaon,
Post - Fetari, Tah. & Dist. Nagpur.
(Ori. Defendant) 4. Narayan s/o. Gangaram Khonde,
Since dead through his legal heirs:
4.1) Laxmibai Narayan Khonde (Dead)
(Deleted as dead as per Hon'ble Court's Order
dated 23-10-24)
4.2) Mahavir @ Jagdish Narayan Khonde
Age: Major, Occ: Private
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4.3) Manisha Wd/o. Krushnarao Khonde
Age: Major, Occ: Household
4.4)Akash Krushnarao Khonde
Age: Major, Occ: Private
4.5) Srushti Krushnarao Khonde,
Age: Major, Occu. Private
All 4.1 to 4.5., R/o. Plot No. 49, Gangoli Layout,
Somalwada, Wardha Road, Nagpur.
4.6) Sau. Baby Tanbaji Dhamane,
Age: Major, Occ: Housewife,
R/o. Khamla Bichayat Kendra, In front of
Chate Coaching Class, Khamala, Nagpur.
4.7) Sau. Tai Nathuji Churad,
Age: Major, Occ: Housewife
R/o. Shilpa Nagar, Beltarodi Road,
Gajanan Mandir, Galli No. 4,
Near Thakur's House, Nagpur.
4.8) Sau. Sudha Vijay Nakhale
Age: Major, Occ: Housewife,
R/o. Adjacent lane of the Orange City Hospital,
Deonagar, Nagpur.
(Ori. Defendant) 5. Maroti Narayan Khonde
Age: 49, Occ. Agriculturist
R/o. Plot No. 49, Gangoli Layout,
Somalwada, Wardha Road, Nagpur.
(Ori. Defendant) 6. Shyamrao Jago Khonde (DEAD)
7. The Tahsildar, Nagpur (Rural)
Add. Nagpur (Rural) Tahsil Office, Civil Lines,
Nagpur.
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Mr. H.R. Gadhia, Advocate a/w Ms R.K. Swami & Aniket Sawal, Advocates for petitioners
Mr. Sahil M. Mate, Advocate for respondent Nos.1 to 3
Mrs. D.I. Charlewar, AGP for respondent No.7
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CORAM : ROHIT W. JOSHI, J.
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Date of reserving the judgment : 11/09/2025
Date of pronouncing the judgment : 22/09/2025
JUDGMENT:
1. Heard. Rule. Rule made returnable forthwith. The petition
is heard finally with the consent of the learned Counsel for the rival
parties.
2. The present petition is filed in order to challenge the
execution proceedings bearing Regular Darkhast No.71/2014 as also
orders dated 18/07/2020 and 17/12/2022 passed under applications
below Exhs.32 and 34 in the said proceedings. By the said orders, the
learned Executing Court had ordered issuance of possession warrant
with respect to the said property in order to hand over possession of the
same to the decree holders who are respondent Nos.1 to 3 in the
present petition. The petition was amended subsequently in order to
challenge the order dated 13/09/2023 passed by the learned Executing
Court rejecting application for intervention filed by the petitioners vide
Exh.36 as also the subsequent order dated 20/09/2023 disposing of the
execution petition.
3. The suit property is a piece of land admeasuring 2.33 acres
being a part of Survey No.67 situated at village Mohgaon, Tah. and
District Nagpur.
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4. The respondent Nos.1 to 3 are grandson, daughter-in-law
and grand daughter of deceased respondent No.6 (defendant
No.3)/Shyamrao Khonde. They are the son, widow and daughter
respectively of late Keshaorao who was predeceased son of respondent
No.6 - Shyamrao Khonde. The father of respondent Nos.1 and 3 and
husband of respondent No.2 - Keshaorao Khonde expired on
20/07/1981.
5. The respondent No.6 - Shyamrao had sold two properties
vide sale-deeds dated 03/05/1975 and 22/04/1982 to respondent No.4
- Narayan Khonde and respondent No.5 - Maroti Khonde. Sale-deed
dated 22/04/1982 pertains to the property which is the subject matter
of the present petition. The said property comprises 2.33 acres of land
bearing old Khasra No.40/1 and now being a part of Survey No.67
situated at Mouza Mohgaon Tahsil and District Nagpur (hereinafter
referred to as "suit property").
6. The respondent Nos.1 to 3 had filed a suit for partition and
separate possession, being Regular Civil Suit No.1036/1988. In the said
suit, sale-deeds dated 03/05/1975 and 22/04/1982 executed by
respondent No.6 in favour of respondent Nos.4 and 5 were also
assailed. The learned trial Court decided the suit vide judgment and
decree dated 29/04/1991. The suit came to be dismissed with respect to
sale-deed dated 03/05/1975 and decreed with respect to the suit
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property which was sold by respondent No.6 to respondent No.5 vide
sale-deed dated 22/04/1982. It was held that the suit property is an
ancestral property in which the respondent Nos.1 to 3 also had a share.
The learned trial Court did not pass a decree for partition on the ground
that granting a decree for partition would create a fragment. In view of
this finding, the sale-deed dated 22/04/1982 with respect to suit
property was set aside in its entirety and respondent Nos.4 and 5 were
directed to handover possession of the same to the respondent Nos.1
to 3 (plaintiffs).
7. The respondent Nos.4 and 5 had preferred appeal
challenging the said decree being Regular Civil Appeal No.403/1986.
The said appeal came to be dismissed in default vide order dated
19/06/2005.
8. Thereafter, the respondent Nos.1 to 3 filed execution
petition for execution of the decree dated 29/04/1991. The execution
petition came to be registered as Regular Darkhas No.71/2014. The
execution petition was filed on 28/01/2014. In this execution petition,
the respondent Nos.1 and 3 filed applications for delivery of possession
of the suit property vide Exhibits 32 and 34, which came to be allowed
vide orders dated 18/07/2020 and 17/12/2022 respectively. The
concerned clerk attached to the office of learned Civil Judge Senior
Division, Nagpur and the Assistant Superintendent (T.W.), Civil Judge
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Senior Division, Nagpur furnished report stating that possession of the
suit property was delivered in terms of the decree for possession.
9. As stated above, the suit property was sold by respondent
No.6 to respondent Nos.4 and 5 vide sale-deed dated 22/04/1982.
Respondent Nos.4 and 5 sold the property to one Kedarnath Fatehpurya
vide sale-deed dated 05/05/1988. Kedarnath Fatehpurya further sold
the property in favour of five individuals, namely, Manju Jain, Suman
Jain, Sika Jain, Sunita Jain and Pramod Agrawal vide sale-deed dated
26/05/2006, who in turn, sold the same to M/s Greatwall Construction
and Developers Private Limited vide sale-deed dated 09/10/2006. One
Sunstar Overseas Limited had borrowed a loan from a consortium of
Banks led by Karur Vyasya Bank Limited. Greatwall Construction and
Developers Private Limited stood as guarantor for the said loan and had
mortgaged the suit property towards security of the loan. It appears that
the borrower had defaulted in repayment of loan, as a consequence of
which, the suit property amongst other properties came to be sold in
favour of the present petitioners vide sale-deed dated 31/05/2021. It
will be pertinent to state that the properties including the suit property
were sold in public auction conducted by invoking the provisions of the
Securitisation and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (for short hereinafter referred to as
"SARFAESI Act"). The sale-deed with respect to Survey No.67 pertains
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to entire land which includes portion of land sold by the respondent
No.6 vide sale-deed dated 03/05/1975, which is held to be valid as also
sale-deed dated 22/04/1982 with respect to the suit property i.e.
portion of land admeasuring 2.33 acres in Survey No.67, which is held
to be invalid.
10. It will be necessary to state that the sale-deed dated
05/05/1988 executed by respondent Nos.4 and 5 in favour of
Kedarnath Fatehpurya is a lis pendens sale-deed which was executed
after Regular Civil Suit No.1036/1988 was filed on 30/04/1988. The
suit was directed to be allotted to the learned 4 th Joint Civil Judge
Junior Division, Nagpur on 30/04/1988. The order of issuance of suit
summons in the said suit was passed on 13/06/1988.
11. As stated above, the said suit was decreed vide judgment
and decree dated 29/04/1991 and appeal preferred against the same
was dismissed in default on 19/06/2005. The petition for execution was
filed thereafter on 28/01/2014. Execution of the decree passed by the
learned trial Court was not stayed by the learned Appellate Court. No
stay was operating while the appeal was pending. It needs to be stated
that the learned Appellate Court has not passed any interim order,
grating stay to the execution of the decree for possession passed by the
learned trial Court.
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12. It will be pertinent to state that the respondent Nos.4 and 5
had filed an objection in the execution petition on the ground that the
execution petition was filed beyond the prescribed period of limitation.
This objection filed vide Exh.16 came to be rejected by learned
Executing Court vide order dated 01/04/2017. The contention of the
respondent Nos.4 and 5 was that the decree was passed on 29/04/1991
and the execution petition was filed much beyond the prescribed period
of limitation of 12 years. As regards Regular Civil Appeal No.403/1996
it was contended that the said appeal was dismissed in default on
19/06/2005 and further that while the appeal was pending no interim
order was granted to stay the execution of the decree passed by the
learned trial Court. It was therefore contended that the limitation of 12
years for filing execution was required to be computed from
29/04/1991 and not from 19/06/2005.
13. As stated above, the order issuing possession warrant was
passed on 17/12/2022. The report dated 27/01/2023 indicates that
possession of the suit property was delivered to the respondent Nos.1
to 3 on 25/01/2023. The present petitioners had lodged a complaint
with the concerned Police Station stating that some persons were trying
to take forcible possession of the suit property. The petitioners thereafter
filed application for intervention in the execution petition vide Exh.36.
The respondent Nos.1 to 3/decree holders opposed the application by
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filing reply dated 16/06/2023 vide Exh.39. The decree holders stated
that they had received possession of the suit property on 25/01/2023
and accordingly purpose of filing the execution petition was served. As
regards merits, it was stated that the petitioners had purchased property
through lis pendens transferees and were therefore bound by the
decree. The application for intervention came to be rejected by the
learned Executing Court vide order dated 13/09/2023. The learned
Executing Court had referred to the bailiff report at Exh.42, according
to which, possession of the suit property was delivered on 25/01/2023.
It is observed that the petitioners/intervenors did not raise any
objection at the time of execution of warrant of possession. The learned
Executing Court therefore rejected the application observing that the
petitioners may avail other remedy by initiating separate litigation, if
they so desire. Subsequently, the execution petition came to be disposed
of on 20/09/2023. In such situation, the petitioners have approached
this Court challenging the execution petition, the orders dated
18/07/2020 and 17/12/2022, directing issuance of warrant of
possession as also the order dated 13/09/2023, rejecting the
intervention application and subsequent order dated 20/09/2023
disposing of the execution petition.
14. Mr. H.R. Gadhia, learned Advocate for the petitioners has
vehemently contended that the decree for possession was passed on
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29/04/1991 and period of 12 years prescribed for filing execution
petition as per Article 136 of the Limitation Act expired on 28/04/2003.
He, therefore, contends that the execution petition filed on 28/01/2014
was hopelessly barred by limitation and was liable to be rejected as
such. As regards the order dated 19/06/2005 by which Regular Civil
Appeal No.403/1996 came to be dismissed in default, the learned
Advocate contends that dismissal of appeal for want of prosecution will
not give cause of action to the respondent Nos.1 to 3/decree holders for
filing execution petition. He contends that the decree passed by the
learned trial Court will not merge in the order dated 19/06/2005. It is
his contention that the decree dated 29/04/1991 was executable and
enforceable since the said date and that execution thereof was never
stayed in the appeal. He, therefore, contends that limitation for filing
execution needs to be counted from 29/04/1991 and not from
19/06/2005.
15. Mr. Gadhia makes a distinction between dismissal of appeal
for want of prosecution and dismissal of appeal on merits. He contends
that if the appeal was dismissed on merits after adjudication of the
same, the decree passed by the learned Executing Court would merge
with the decree passed by the learned Appellate Court and in such cases
limitation for filing execution shall commence from the date of appellate
judgment. He contends that in cases where appeals are dismissed for
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want of prosecution, the decree passed by the learned Executing Court
does not merge in the order of dismissal of appeal in default and in such
cases, the limitation for filing execution is required to be computed from
the date of judgment delivered by the learned trial Court.
16. Learned Advocate also contends that the learned Executing
Court should have allowed the application for intervention in order to
enable the petitioners to contest the matter. It is his contention that the
sale-deed in favour of respondent Nos.4 and 5 was executed before
issuance of suit summons. He further contends that the present
petitioners have purchased the suit property in an auction under the
SARFAESI Act and four sale transactions that taken place with respect to
the suit property prior to execution of sale-deed in favour of the
petitioners.
17. As regards his contention with respect to the execution
proceedings being filed beyond period of limitation and also in support
of his contention that in case where an appeal is dismissed otherwise
than on merits, the decree passed by the learned trial Court becomes
enforceable from the date on which it is passed, unless execution of the
decree is stayed by the Appellate Court and that in case where appeal is
dismissed otherwise than on merits doctrine of merger will not be
applicable the learned Advocate has placed reliance on the following
judgments :-
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(i) State of Kerala and another Vs. Kondottyparambanmoosa
and others (2004) 8 SCC 65 (para 25 and 26).
(ii) Chandi Prasad and others Vs. Jagdish Prasad and others
(2004) 8 SCC 724.
(iii) Sopana Rambhau Musale and another Vs. Baban
Bhagwanta Khade (2006) 5 Bom CR 448.
(iv) Manohar s/o Shankar Nale and others Vs. Jaipal Singh s/o
Shivlal Singh Rajput and others (2008) 1 SCC 520.
(v) Sopana Rambhau Musale and another Vs. Baban
Bhagwanta Khade, judgment dated 13/07/2006 passed in
Regular Civil Appeal No.9/2006 (Civil Appellate Jurisdiction at
Bombay) (para 26 and 27)
(vi) Ratansingh Vs. Vijaysingh and others (2001) 1 SCC 469.
(vii) Balbir Singh and another Vs. Baldev Singh (D) through his
Lrs. and others 2025 DGLS (SC) 81.
(viii) Narayan Bhau Salve (deceased) through legal heirs
Balkrushna Narayan Salve and others Vs. Khandu Baburao Salve
(deceased) through legal heirs Devidas Khandu Savle and others,
judgment dated 09/06/2025 passed in Writ Petition
No.11400/2022 (Civil Appellate Jurisdiction at Bombay).
18. In respect of his contention that the application for
intervention ought to have been allowed in order to provide one
opportunity to the petitioners to contest the execution proceedings,
learned Advocate has placed reliance on the judgment of the Hon'ble
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Supreme Court in the case of Bhudev Mallick Vs. Ranajit Ghoshal
reported in 2025 SC OnLine SC 360 (paras 53, 55 and 59).
19. Per contra, learned Advocate for the respondent Nos.1
to 3/decree holders draws attention to Section 36 of the Code of Civil
Procedure and contends that the provisions of Code relating to
execution of decrees are also applicable to execution of orders. The
learned Advocate states that dismissal of appeal in default results in
confirmation of the decree passed by the learned trial Court by the
learned Appellate Court, which gives rise to a fresh cause for filing
execution petition. The learned Advocate, therefore, contends that the
execution was filed within limitation.
20. Another contention raised by the learned Advocate for the
respondent Nos.1 to 3 is that a similar objection pertaining to limitation
was raised by the respondent Nos.4 and 5/judgment debtors vide
Exh. 16 and the same was rejected by the learned Executing Court vide
order dated 01/04/2017. He states that this order has not been assailed
either by the respondent Nos.4 and 5/judgment debtors or by the
petitioners. The learned Advocate contends that the said order has
attained finality and shall operate as res judicata between the parties.
He, therefore, contends that the writ petition should be dismissed.
21. In response to the contention by the learned Advocate for
respondent Nos.1 to 3 relating to res judicata, Mr. Gadhia learned
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Advocate for the petitioners raises a contention that the res judicata will
not be applicable when objection is raised with respect to jurisdiction of
a Court to entertain a proceeding, if it is raised as a pure question of law
without raising any dispute with respect to facts. Mr. Gadhia contends
that limitation of Court to entertain a proceeding goes to the root of the
jurisdiction of the Court. He further contends that res judicata is a
procedural doctrine, which is in fact an extension of the doctrine of
estoppel. Mr. Gadhia contends that there cannot be any estoppel against
law and therefore, res judicata will not be applicable when objection is
raised in relation to jurisdiction of a Court. In support of his contention
he has placed reliance on the following judgments.
(i) Mathura Prasad Bajoo Jaiswal and others Vs. Dossibai
N.B. Jeejeebhoy(1970) 1 SCC 613.
(ii) Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead)
Through his Lrs. (1990) 1 SCC 193.
(iii) Union of India and another Vs. Association of Unified
Telcom Service Providers of India and others (2011) 10 SCC 543.
(iv) Chandrabhai K. Bhoir and others Vs. Krishna Arjun Bhoir
and others (2009) 2 SCC 315.
(v) Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh (2005)
3 SCC 232.
(vi) Foreshore Cooperative Housing Society Limited Vs. Praveen
D. Desai (Dead) Through Legal Representatives and others (2015)
6 SCC 412.
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22. The contention of the petitioners with respect to limitation
is prima facie acceptable. It is undisputed fact that the appeal filed by
the respondent Nos.4 and 5 was not decided on merits. The appeal was
dismissed in default on 19/06/2005. The decree in favour of respondent
Nos.1 to 3 was passed on 29/04/1991. The execution of the decree was
never stayed by the learned Appellate Court. It, therefore, appears that
there was no hindrance or legal obstacle in execution of the decree. The
judicial pronouncements on which the learned Advocate for the
petitioners has placed reliance appear to support the said contention.
23. However, it is equally true that an objection pertaining to
limitation of execution proceedings was raised by the respondent Nos.4
and 5/judgment debtors and that the said objection was rejected by the
learned trial Court vide order dated 01/04/2027. The said order is not
challenged by the petitioners. The respondent Nos.4 and 5 have also not
challenged the said order. The petitioners are in a sense claiming the suit
property through the respondent Nos.4 and 5/judgment debtors. The
petitioners although have purchased the property under a statutory
auction, the property came to be vested with the mortgagor through
sale-deeds executed by respondent Nos.4 and 5 and other predecessor-
in-title. The orders passed against the respondent Nos.4 and 5 will
therefore normally operate as res judicata against the petitioners as well.
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24. Now coming to the contention of the learned Advocate for
the petitioners that res judicata will not be applicable to the present case
since the objection pertains to the jurisdiction of the Court and that the
objection is required to be adjudicated as a pure question of law without
enquiry into any disputed question of fact. Learned Advocate for the
petitioners has relied on the aforesaid judgments in support of his
contention.
25. While dealing with the contention of the learned Advocate
for the petitioners relating to res judicata a distinction must be borne
between inherent lack of jurisdiction and error in exercise of jurisdiction.
The order passed by the Court in a proceeding barred by limitation is not
an order without jurisdiction. Such an order does not exhibit complete
lack of jurisdiction. In this regard it would be appropriate to refer the
judgments of the Hon'ble Supreme Court Ittyavira Mathai Vs. Varkey
Varkey and another, reported in AIR 1964 SC 907 ; Bhawarlal Bhandari
Vs. Universal Heavy Mechanical Lifting Enterprises (1999) 1 SCC 558 and
Indian Farmers Fertilizer Cooperative Limited Vs. Bhadra Products (2018)
2 SCC 534. It is held by the Hon'ble Supreme Court that inherent lack of
jurisdiction must be distinguished from the procedural aspects of
jurisdiction, such as, territorial jurisdiction, pecuniary jurisdiction and
lack of jurisdiction on account of limitation. It is held that an order
passed by the competent Court in a proceeding which is filed beyond
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limitation will not render the order void ab initio. It is held that such
order, even if illegal, will have to be challenged to have it set aside. The
earlier order passed by the learned Executing Court rejecting the
objection raised by respondent Nos.4 and 5 cannot be said to be void ab
initio. The objection was raised by the respondent Nos.4 and 5 with
respect to limitation. The objection was not pertaining to inherent lack
of jurisdiction.
26. In the considered opinion of this Court, it was necessary for
the petitioners to challenge the said order and it cannot be contended
that the said order can be ignored as void ab initio so as to assert that it
will not be binding and shall not operate as res judicata.
27. In this regard it will be appropriate to refer to the judgment
in the matter of Foreshore Cooperative Housing Society Ltd. (supra)
relied upon by the petitioners wherein it is observed that plea of
limitation and res judicata are jurisdictional aspects of a Court. It will be
appropriate to refer to judgment of the Hon'ble Supreme Court in the
matter of Indian Farmers Fertilizer Cooperative Limited Vs. Bhadra
Products, reported in (2018) 2 SCC 534, wherein the Hon'ble Supreme
Court has held that an erroneous decision on the point of limitation or
res judicata does not oust the jurisdiction of a Court in its primary sense
to render the decision in nullity in the eyes of law. It is held that when
an order suffers from such defect relating to jurisdiction, the order
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cannot be ignored and that it is necessary to challenge the order and
have it set aside. Such a case will not be one of inherent inherent lack of
jurisdiction but of even in exercise of jurisdiction. The Hon'ble Supreme
Court has placed reliance on a Constitution Bench judgment in the
matter of Ittyavira Mathai Vs. Varkey Varkey (supra) to carve out a
distinction between an erroneous jurisdiction on the point of limitation
which is an error of law committed within the jurisdiction of a Court and
an order which is completely without jurisdiction.
28. The term jurisdiction needs to be understood in the sense of
inherent jurisdiction i.e. authority to decide and procedural aspects of
jurisdiction, such as, territorial jurisdiction, pecuniary jurisdiction,
limitation etc. In cases of inherent lack of jurisdiction the orders passed
by the Court will be void ab initio and non est in the eyes of law. Such
orders will not be binding on the parties even if they are not challenged.
As against this, there may be orders suffering from error of jurisdiction
relating to its procedural aspects, such as, territorial jurisdiction,
pecuniary jurisdiction, limitation etc. which, even if, are in a sense
without jurisdiction, will have to be challenged and got rid off. It cannot
be said that such orders are void ab initio. It is necessary to bear in mind
difference between an order completely without jurisdiction and an
order which is passed in erroneous exercise of jurisdiction.
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29. Now, it will be appropriate to deal with the judgments
relied upon by the learned Advocate for the petitioners on the point of
jurisdiction and res judicata. These judgments state that when point of
jurisdiction is wrongly decided, the challenge to jurisdiction cannot be
foreclosed by invoking doctrine of res judicata. The judgments
unequivocally state that jurisdiction deals with authority of a Court to
entertain a lis and res judicata is merely a matter of procedure. It will
however be necessary to state that in all the judgments relied upon by
the learned Advocate for the petitioners, the objection was pertaining to
subject matter jurisdiction i.e. inherent jurisdiction. In that sense it is
said that when a Court of law exercises the jurisdiction not vested with it
or refuses to exercise jurisdiction vested with it, issue of res judicata will
not be irrelevant.
Mathura Prasad Bajoo Jaiswal and others Vs. Dossibai N.B.
Jeejeebhoy(1970) 1 SCC 613.
30. In the said judgment, the issue was pertaining to jurisdiction
of Small Causes Court. In the earlier round of litigation it was held that
in case of lease of land granted for construction of building the
provisions of Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 are not applicable. However, subsequently a proceeding was filed
before the Small Causes Court invoking the provisions of the said Act.
The proceeding was dismissed by the learned Small Causes Court on the
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ground that in the earlier round of litigation between the same parties, it
was held that jurisdiction to decide the matter was vested with the civil
Court. The Hon'ble Supreme Court allowed the appeal preferred by the
original applicant stating that an erroneous decision on the point of
jurisdiction of a Court does not operate as res judicata.
31. In this context, the Hon'ble Supreme Court has held that
doctrine of res judicata belongs to domain of procedure and that when a
question of jurisdiction is erroneously decided, doctrine of res judicata
cannot be invoked. As stated above, the question which fell for
consideration before the Hon'ble Supreme Court was pertaining to
inherent jurisdiction. In view of the provisions of the Bombay Rent Act,
the Small Causes Court alone had the jurisdiction to decide the
application. However, the Small Causes Court refused to exercise the
jurisdiction holding that earlier decision between the parties wherein it
was held that the civil court will have the jurisdiction and shall operate
as res judicata. The said judgment pertains to subject matter jurisdiction
or inherent jurisdiction and not procedural aspect of jurisdiction. As
regards the Hon'ble Supreme Court has held that a pure question of law
dealing with jurisdiction of Court will not operate as res judicata, if the
cause of action is different. However, in the present case, the cause of
action is the same i.e. execution of decree dated 29/04/1991 passed in
Regular Civil Suit No.1036/1988.
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Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) Through his
Lrs. (1990) 1 SCC 193.
32. The said judgment also deals with subject matter jurisdiction
or inherent jurisdiction. The question before the Hon'ble Supreme Court
was regarding jurisdiction of civil court to pass decree for eviction in
light of provisions of Harayana Urban (Control of Rent and Eviction) Act,
1973. The suit property was subject to provisions of the said Act which
confers jurisdiction of rent controller to pass order of eviction. However,
the decree for eviction was passed by a civil court and objection raised to
execution of the decree on the ground that it was non est and is not
executable was rejected. The Hon'ble Supreme Court has held in para 27
of the judgment that since jurisdiction to order ejectment of tenant was
vested with the controller, the civil court lacked inherent jurisdiction to
entertain a suit for eviction and pass decree for eviction. It was held that
the decree for eviction passed by the learned civil Court was a nullity
and therefore, the said decree did not operate as res judicata. The
objection to execution raised by the tenant was upheld on the ground of
inherent lack of jurisdiction although the decree for eviction was not
challenged.
Union of India and another Vs. Association of Unified Telcom Service Providers
of India and others (2011) 10 SCC 543.
33. The said judgment deals with the jurisdiction of TRAI to
adjudicate correctness or validity of definition of the term, 'adjusted
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gross revenue' as defined under the terms of telecom licence which were
accepted by the association of telecom service providers. A dispute with
respect to definition of aforesaid term was raised before the TRAI and
the Tribunal constituted under the TRAI Act. It was held that although
the Tribunal did not have jurisdiction to decide or adjudicate the dispute
pertaining to definition of the said term, it had vide order dated
07/07/2006 decided the same. The Hon'ble Supreme Court has held
that since the said order dated 07/07/2006 was without jurisdiction, it
was a nullity and would not operate as res judicata. The said judgment
also pertains to inherent lack of jurisdiction.
Chandrabhai K. Bhoir and others Vs. Krishna Arjun Bhoir and others
(2009) 2 SCC 315.
34. In the said judgment in exercise of powers under Section
302 of the Indian Succession Act, directions for enforcement of
settlement terms in a probate proceedings were issued by the learned
Court. The Hon'ble Supreme Court has held that Section 302 of the
Indian Succession Act enabled the Court to issue directions only with
respect to administration the estate of the testator in terms of the Will
and not to issue directions on the basis of any settlement arrived at
between the parties when the terms of settlement were at variance with
the terms of Will. In this backdrop, it was held that the order directing
enforcement of the settlement terms was without jurisdiction. In the
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facts of the case, the Hon'ble Supreme Court has held that a
testamentary Court exercising jurisdiction under Section 302 did not
have jurisdiction to enforce a contract/settlement and therefore, the
order was without jurisdiction. This judgment also deals with lack of
subject matter of jurisdiction i.e. inherent lack of jurisdiction.
Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh (2005) 3 SCC 232
35. In the said judgment the Industrial Court had granted relief
of reinstatement to the complainant, who was engaged to perform duties
akin to that of an Advocate. The Industrial Court had allowed the
complaint holding that the complainant was performing tasks which
were "legal clerical" in nature holding that the complainant was a
workman. The Hon'ble Supreme Court held that having regard to the
nature of his work, the complainant did not fall within definition of the
term 'workman' and as such the order passed by the Industrial Court was
without jurisdiction. In this context, it is held that since the order passed
was without jurisdiction it cannot operate as res judicata.
Foreshore Cooperative Housing Society Limited Vs. Praveen D. Desai (Dead)
Through Legal Representatives and others (2015) 6 SCC 412.
36. The said judgment deals with Section 9A of the Code of
Civil Procedure which was introduced in the State of Maharashtra.
Section 9A of the Code provided that in cases where application for
interim relief is filed in a suit and an objection to jurisdiction of the
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Court to entertain the suit is raised, the issue of jurisdiction should be
tried as preliminary issue on an application made by a party to the suit.
Dealing with the said provision, the Hon'ble Supreme Court has held
that the question of limitation involves question of jurisdiction of a
Court. It will however be pertinent to mention that the Hon'ble Supreme
Court has not held that the order passed in a proceeding filed beyond
limitation will be a nullity or non est. It is not held that the order passed
in a proceeding filed beyond limitation results in an order suffering from
inherent lack of jurisdiction. Most importantly this judgment refers to
several other judgments including judgment in the matter of Pandurang
Dhondi Chougule Vs. Maruti Hari Jadhav, AIR 1966 SC 153 , wherein it is
observed as under :-
"It is well settled that a plea of limitation or a plea of res judicata is a
plea of law which concerns the jurisdiction of the court which tries the
proceedings."
Thus, res judicata is also held to be a jurisdictional aspect of
a Court.
37. It will be pertinent to state that Section 11 of the Code of
Civil Procedure states that no Court shall try any suit or issue in which
matter directly and substantially in issue has been decided in a former
suit between the same parties or under whom they or any of them claim,
if such issue was directly and substantially involved in the earlier suit or
WP 4964 of 2023 - Judgment.odt
proceedings. The language of provision itself indicates that res judicata
also deals with aspect of jurisdiction. It prohibits the Court from
entertaining a lis which is already set at rest by earlier adjudication.
However, both limitation and res judicata are procedural aspects of
jurisdiction. They do not deal with the subject matter jurisdiction or
inherent jurisdiction of a Court. It will be appropriate to refer to a recent
decision of the Hon'ble Supreme Court relating to res judicata in the case
of Puja Ferro Alloys P. Ltd Vs. State of Goa and others, reported in 2025
SCC OnLine SC 326, wherein it is held that principle of res judicata is
essential to accord finality to judicial decision in order to ensure that
some issues are not repeatedly agitated by litigating parties. It is held
that doctrine of res judicata is based on public policy and justice. It is
reiterated that plea of res judicata although a technical plea, is based on
public policy. The general principle that res judicata applies to
determination of issue in the same proceedings is also reiterated.
38. The contention of the learned Advocate for the petitioners
that the order rejecting objection filed by the respondent Nos.4 and 5
will not operate as res judicata is therefore liable to be rejected.
39. Having said so, this Court prima facie finds itself in
agreement with the contention of the learned Advocate for the
petitioners that the issue of limitation may not have been correctly
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decided by the learned Executing Court vide order dated 01/04/2017
passed below Exh.16.
40. The judgments relied upon by the learned Advocate for the
petitioners indicate that the order dismissing appeal in default is not
enforceable order and that a decree passed by the learned trial Court
does not merge in such said order and further that in case where the
Appellate Court does not grant stay to execution of decree passed by the
trial Court the decree continues to be enforceable and executable during
the pendency of the appeal.
41. As stated above, the petitioners have purchased the suit
property in public auction under SARFAESI Act. There are four preceding
sale-deeds with respect to suit property before the petitioners have
purchased the same in public auction. In the considered opinion of this
Court, the learned Executing Court should have allowed the application
for intervention filed by the petitioners. The learned Advocate for the
petitioners is justified in his contention that the learned Executing Court
should have allowed the application for intervention so as to enable the
petitioners to move appropriate application/s and/or objection/s. The
contention raised by the learned Advocate for the petitioners is
supported by the judgment of the Hon'ble Supreme Court in the matter
of Bhudev Mallick (supra). It will be pertinent to state that although the
first sale-deed dated 05/05/1984 executed by respondent Nos.4 and 5 is
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after filing of the suit i.e. on 30/04/1988, it is prior to the date on which
suit summons were ordered to be issued in the said suit i.e. 13/06/1988.
42. The petitioners had appeared before the learned Executing
Court without undue delay after the possession warrant was executed or
allegedly executed. The possession warrant is stated to be executed on
25/01/2023 and the petitioners have filed the application for
intervention on 27/03/2023. Having regard to the aforesaid coupled
with the fact that the respondent Nos.1 to 3/decree holders have filed
execution proceedings for execution of decree dated 29/04/1991 on
28/01/2014, after period of around 23 years, in the opinion of this
Court the learned Executing Court should have been considerate in
permitting the petitioners to intervene in the matter. The petitioners
could have raised appropriate objections including filing of an
application for review in order to challenge the order dated 01/04/2017
rejecting the application pertaining to limitation.
43. The learned Executing court should have considered that
although the possession warrant was stated to be executed, the order of
restitution could have been passed in favour of the petitioners, if the
situation warranted.
44. In view of the aforesaid, the writ petition is partly allowed
by quashing and setting aside the order dated 13/09/2023 passed by the
learned 12th Joint Civil Judge Senior Division, Nagpur on application at
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Exh.36 in Regular Darkhast No.71/2014 as also the order dated
20/09/2023 passed by the learned 12 th Joint Civil Judge Senior Division,
Nagpur below Exh.1 in Regular Darkhast No.71/2014. Application at
Exh.36 is allowed.
45. Liberty is granted to the petitioners to file application for
review of order dated 01/04/2017 passed below Exh.16 along with
application for condonation of delay or to take other appropriate steps
for challenging the said order. The parties are directed to appear before
the learned Executing Court on 15/10/2025. The parties to note that
separate notice for appearance will not be issued.
46. Rule is made absolute in the aforesaid terms. No order as to
costs.
(ROHIT W. JOSHI, J.)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 22/09/2025 18:00:56
