Madhya Pradesh High Court
Kavita Devi Rahira vs Ramnivas Gupta on 11 June, 2021
Author: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
M.P. No.1580/2021
(Kavita Devi vs. Ramniwas Gupta and Others.)
Gwalior, Dated : 11.06.2021
Heard through videoconferencing.
Shri P.C. Chandil, counsel for the petitioner.
Issue notice to the respondents on payment of process fee within
seven working days by registered AD mode, failing which the petition
shall stand dismissed without further reference to the Court.
I.A. No.5212/2021, I.A.No.5727/2021 and I.A. No.6418/2021,
applications for urgent hearing are taken up, considered and allowed
for the reasons mentioned therein.
Also heard on I.A. No.5728/2021, an application for taking the
documents on record.
For the reasons mentioned in the application, the same is
allowed. Documents are taken on record.
Heard on the question of interim relief.
It is argued that no relief was claimed against the defendant No.7
that is the present petitioner by the plaintiff. He has drawn attention of
this Court to the relief clause in the plaint even after the subsequent
amendment in the plaint no relief was sought against the respondent
No.7. It is submitted that as far as petitioner is concerned, as there was
no relief sought against her the trial court was having no jurisdiction to
pass any decree for recovery against the present petitioner. He has
relied upon the judgment passed by the Hon'ble Supreme Court in the
case of Urban Improvement Trust Jodhpur vs. Gokul Narayan and
ors., reported in AIR 1996 SCW 2111, and has relied upon para 15
THE HIGH COURT OF MADHYA PRADESH
M.P. No.1580/2021
(Kavita Devi vs. Ramniwas Gupta and Others.)
which reads as under:-
"15.The question then is: whether the objections can be raised
in execution? This controversy is no longer res integra. In
Sushil Kumar Mehta vs. Gobind Ram Bohra (Dead) through
his Lrs. [(1990) 1 SCC 193] a three-Judge Bench of this Court
was to consider whether the nullity of a decree can be raised in
execution. Under the Haryana Urban [Control of Rent and
Eviction) Act, 1973 the building was governed by the
provisions of the said Act. The Civil Court granted decree of
eviction. When objection was raised in execution the executing
Court rejected the same. On appeal, this Court had held that a
decree passed by a Court jurisdiction over the subject matter or
on any other ground which goes to the root of its exercise of
jurisdiction or inherent jurisdiction, is a nullity. A decree passed
by such a court is a nullity and is non est. 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. If the court has jurisdiction but
there is any defect in its exercise of jurisdiction it does not go
to the root of its authority. Such a defect like territorial
jurisdiction could be waived by the party which could be
corrected only by way of an appeal or revision. In that case it
was held that since the decree was a nullity the validity was
upheld in execution."
It is submitted that vide impugned order the attachment warrant
is being issued against the petitioner who was the defendant no.7.
Considering the overall facts and circumstances of the case,
effect and operation of the order impugned to the extent it relates to the
THE HIGH COURT OF MADHYA PRADESH
M.P. No.1580/2021
(Kavita Devi vs. Ramniwas Gupta and Others.)
petitioner is directed to be stayed till the next date of hearing. No
attachment of property of the petitioner shall be made till the next date
of hearing.
List the case in the week commencing 12.07.2021.
(VISHAL MISHRA)
JUDGE
van
SMT VANDANA
VERMA
2021.06.14 11:31:48
-07'00'
