Madhya Pradesh High Court
Smt. Mradula Sisodiya vs Ganesh Malakar on 14 October, 2024
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 3198 of 2024
SMT. MRADULA SISODIYA
Versus
GANESH MALAKAR AND OTHERS
Appearance:
Shri Vinay Vijayvargiya - Advocate for the petitioner.
Shri Rishiraj Trivedi - Advocate for the respondents.
Reserved on :- 17.09.2024
Pronounced on :- 14.10.2024
_____________________________________________________________
ORDER
This petition under Article 227 of the Constitution of India has been
preferred by the petitioner/defendant/judgment debtor being aggrieved by the
order dated 13.03.2024 passed by the Second Civil Judge, Junior Division,
Barwah, District West Nimar, Mandleshwar (M.P.), whereby the objection
preferred by her to the executability of the decree has been rejected.
02. The facts of the case in brief are that the respondent/ plaintiff /
decree holder instituted an action for specific performance of contract. The
suit was valued at Rs.9,00,000/- and was instituted in the Court of Civil
Judge, Senior Division, Barwah. Subsequently, the same was transferred by
the District Judge to the Court of Civil Judge, Junior Division, Barwah.
Eventually, the same was decreed ex-parte by judgment and decree dated
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04.01.2019.
03. The decree was then put to execution by the decree holder before
the executing Court. Upon being served with notice of the execution
proceedings, the judgment debtor filed an objection therein, presumably
under Section 47 of the CPC, to the executability of the decree submitting
that the claim was valued at Rs.9,00,000/- but has been decreed by Court of
Civil Judge, Junior Division which has pecuniary jurisdiction only up to
Rs.5,00,000/- hence the decree passed is without jurisdiction, null and void
and inexecutable. The application was contested by the decree holder and has
been rejected by the executing Court by observing that no appeal has been
preferred against the decree and there is no order of stay of its execution and
that the grounds as taken by the judgment debtor are not sufficient for
dismissal of the execution proceedings.
04. Learned counsel for judgment debtor has submitted that the decree
has been passed by Court of Civil Judge, Junior Division which has
pecuniary jurisdiction only up to Rs.5,00,000/-. The claim of decree holder
was valued at Rs.9,00,000/-. The decree is hence beyond competence of
Civil Judge, Junior Division, who inherently lacked jurisdiction to pass the
same which is hence a nullity and such an objection could have very well
been raised before the executing Court. Since the decree is a nullity, the same
cannot be executed in view of which the execution proceedings deserve to be
dismissed. Reliance has been placed by him on the decision of the Apex
Court in Harpal Singh Vs. Ashok Kumar and Another 2018 (11) SCC 113.
05. Per contra, learned counsel for the decree holder has submitted that
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even if the decree has been passed by a Court not having the pecuniary
jurisdiction, it would not be a case of inherent lack of jurisdiction. The decree
passed would at best be voidable but not void or a nullity. The objection as
regards the same being voidable cannot be raised in execution proceedings.
Since the decree is not a nullity, the application preferred by the judgment
debtor has rightly been dismissed by the executing Court. Reliance has been
placed by him on the decision of the Apex Court in Hasham Abbas Sayyad
Vs. Usman Abbas Sayyad and Others, 2007 (2) SCC 355 a n d Subhash
Mahadevasa Habib Vs. Nemasa Ambasa Dharmadas (Dead) by Lrs. and
Others 2007 (13) SCC 650.
06. I have considered the submissions of learned counsel for the
parties and have perused the record.
07. The claim was instituted by the decree holder before Civil Judge,
Senior Division and was valued at Rs.9,00,000/-. Thereafter the same was
transferred by the District Judge from the Court of Civil Judge, Senior
Division to the Court of Civil Judge, Junior Division, who admittedly has
pecuniary jurisdiction only up to Rs.5,00,000/-. Ex-parte judgment and
decree was passed by him on 04.01.2019. The issue is hence whether such a
decree passed by him beyond his pecuniary jurisdiction would be a nullity
and void or would merely be voidable.
08. It has been held by the Apex Court that principles of estoppel,
waiver and acquiescence or even res judicata which are procedural in nature
would have no application in a case where an order has been passed without
any authority. Any order passed by a Court without jurisdiction would be
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coram non judice and being a nullity, the same ordinarily should not be given
effect to. In this regard see Managing Director, Army Welfare Housing
Organisation V. Sumangal Services (P) Ltd., 2004 (9) SCC 619 , Harshad
Chiman Lal Modi Vs. DLF Universal Ltd., 2005 (7) SCC 791 and Hasham
Abbas Sayyad (supra).
09. In Harpal Singh (supra), it has been held by the Apex Court that
the validity of a decree can be challenged before an executing Court only on
the ground of inherent lack of jurisdiction which renders the decree a nullity.
It was held as under:-
"6. The validity of a decree can be challenged before an executing court only on the ground
of an inherent lack of jurisdiction which renders the decree a nullity. In Hira Lal Patni v. Kali
Nath [Hira Lal Patni v. Kali Nath, (1962) 2 SCR 747 : AIR 1962 SC 199] this Court held thus :
(AIR p. 200, para 4)
"4. ... The validity of a decree can be challenged in execution proceedings only on the
ground that the court which passed the decree was lacking in inherent jurisdiction in the
sense that it could not have seisin of the case because the subject-matter was wholly
foreign to its jurisdiction or that the defendant was dead at the time the suit had been
instituted or decree passed, or some such other ground which could have the effect of
rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the
suit or over the parties to it. ..."
10. In Harshad Chiman Lal Modi (supra), it was held by the Apex
Court that jurisdiction of the Court may be classified into several categories.
The important categories are territorial or local jurisdiction, pecuniary
jurisdiction and jurisdiction over the subject matter. So far as pecuniary
jurisdiction is concerned objection to said jurisdiction has to be taken up at
the earliest possible opportunity and in any case at or before settlement of
issues. If the same is not taken, it cannot be allowed to be taken at a
subsequent stage.
11. In Hasham Abbas Sayyad (supra), it was laid down that distinction
must be made between a decree passed by a Court which has no territorial or
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pecuniary jurisdiction in the light of Section 21 of the CPC and a decree
passed by a Court having no jurisdiction in regard to the subject matter of the
suit. In the former case, the Appellate Court may not interfere with the
decree unless prejudice is shown, ordinarily the second category of the cases
would be interfered with.
12. In Subhash Mahadevasa Habib (supra) the effect of lack of
pecuniary jurisdiction was considered in detail and it was eventually held as
under:-
"33. What is relevant in this context is the legal effect of the so-called finding in OS No. 4
of 1972 that the decree in OS No. 61 of 1971 was passed by a court which had no
pecuniary jurisdiction to pass that decree. The Code of Civil Procedure has made a
distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and
pecuniary jurisdiction. Whereas an inherent lack of jurisdiction may make a decree passed
by that court one without jurisdiction or void in law, a decree passed by a court lacking
territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At
best it is voidable in the sense that it could be challenged in appeal therefrom provided the
conditions of Section 21 of the Code of Civil Procedure are satisfied.
34. It may be noted that Section 21 provided that no objection as to place of the suing can
be allowed by even an appellate or revisional court unless such objection was taken in the
court of first instance at the earliest possible opportunity and unless there has been a
consequent failure of justice. In 1976, the existing section was numbered as sub- section
(1) and sub-section (2) was added relating to pecuniary jurisdiction by providing that no
objection as to competence of a court with reference to the pecuniary limits of its
jurisdiction shall be allowed by any appellate or revisional court unless such objection had
been taken in the first instance at the earliest possible opportunity and unless there had
been a consequent failure of justice. *****
35. Though Section 21-A of the Code speaks of a suit not being maintainable for
challenging the validity of a prior decree between the same parties on a ground based on an
objection as to "the place of suing", there is no reason to restrict its operation only to an
objection based on territorial jurisdiction and excluding from its purview a defect based on
pecuniary jurisdiction. In the sense in which the expression "place of suing" has been used
in the Code it could be understood as taking within it both territorial jurisdiction and
pecuniary jurisdiction.
36. Section 15 of the Code deals with pecuniary jurisdiction and, Sections 15 to 20 of the
Code deal with "place of suing". The heading "place of suing" covers Section 15 also. This
Court in Bahrein Petroleum Co. Ltd. v. P.J. Pappu [AIR 1966 SC 634 : (1966) 1 SCR 461]
made no distinction between Section 15 on the one hand and Sections 16 to 20 on the
other, in the context of Section 21 of the Code. Even otherwise, considering the
interpretation placed by this Court on Section 11 of the Suits Valuation Act and treating it
as equivalent in effect to Section 21 of the Code of Civil Procedure as it existed prior to the
amendment in 1976, it is possible to say, especially in the context of the amendment
brought about in Section 21 of the Code by Amendment Act 104 of 1976, that Section 21-
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A was intended to cover a challenge to a prior decree as regards lack of jurisdiction, both
territorial and pecuniary, with reference to the place of suing, meaning thereby the court in
which the suit was instituted.
37. As can be seen, Amendment Act 104 of 1976 introduced sub-section (2) relating to
pecuniary jurisdiction and put it on a par with the objection to territorial jurisdiction and the
competence to raise an objection in that regard even in an appeal from the very decree.
This was obviously done in the light of the interpretation placed on Section 21 of the Code
as it existed and Section 11 of the Suits Valuation Act by this Court in Kiran
Singh v. Chaman Paswan [AIR 1954 SC 340 : (1955) 1 SCR 117] followed by Hiralal
Patni v. Kali Nath [AIR 1962 SC 199 : (1962) 2 SCR 747] and Bahrein Petroleum Co.
Ltd. v. P.J. Pappu [AIR 1966 SC 634 : (1966) 1 SCR 461] . Therefore, there is no
justification in understanding the expression "objection as to place of suing" occurring in
Section 21-A as being confined to an objection only in the territorial sense and not in the
pecuniary sense. Both could be understood, especially in the context of the amendment to
Section 21 brought about by the Amendment Act, as objection to place of suing.
40. The entire question was considered by this Court in Kiran Singh [AIR 1954 SC 340 :
(1955) 1 SCR 117] . Since in the present case, the objection is based on the valuation of the
suit or the pecuniary jurisdiction, we think it proper to refer to that part of the judgment
dealing with Section 11 of the Suits Valuation Act. Their Lordships held: (AIR p. 342,
para 7)
"7 . ... It provides that objections to the jurisdiction of a court based on
overvaluation or undervaluation shall not be entertained by an appellate court except
in the manner and to the extent mentioned in the section. It is a self-contained
provision complete in itself, and no objection to jurisdiction based on overvaluation
or undervaluation can be raised otherwise than in accordance with it.
With reference to objections relating to territorial jurisdiction, Section 21 of the
Civil Procedure Code enacts that no objection to the place of suing should be
allowed by an appellate or revisional court, unless there was a consequent failure of
justice. It is the same principle that has been adopted in Section 11 of the Suits
Valuation Act with reference to pecuniary jurisdiction. The policy underlying
Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits
Valuation Act is the same, namely, that when a case had been tried by a court on the
merits and judgment rendered, it should not be liable to be reversed purely on
technical grounds, unless it had resulted in failure of justice, and the policy of the
legislature has been to treat objections to jurisdiction both territorial and pecuniary as
technical and not open to consideration by an appellate court, unless there has been a
prejudice on the merits."
*****
41. In the light of the above, it is clear that no objection to the pecuniary jurisdiction of the
court which tried OS No. 61 of 1971 could be raised successfully even in an appeal against
that very decree unless it had been raised at the earliest opportunity and a failure of justice
or prejudice was shown. Obviously therefore, it could not be collaterally challenged. That
too not by the plaintiffs therein, but by a defendant whose alienation was unsuccessfully
challenged by the plaintiffs in that suit."
13. Thus, a decree passed by a Court lacking pecuniary jurisdiction
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does not automatically become void for that reason. At best it is voidable in
the sense that it could be challenged in appeal therefrom provided the
conditions of Section 21 of the CPC are satisfied. The objection as regards
pecuniary jurisdiction is to be taken before the Court of first instance at the
earliest possible opportunity. Even the Appellate Court would not interfere in
objection being raised to competence of a Court with reference to pecuniary
limits of its jurisdiction unless there has been a consequent failure of justice.
Such an objection as regards pecuniary jurisdiction cannot be raised in
collateral proceedings or in execution proceedings since a decree passed by a
Court lacking pecuniary jurisdiction is at best voidable and not void.
14. In the present case, upon the suit having been transferred from the
Court of Civil Judge, Senior Division to the Court of Civil Judge, Junior
Division no objection as regards pecuniary jurisdiction was raised by the
judgement debtor. That fact cannot be disregarded only for the reason that
she was ex-parte before the trial Court. No appeal has been preferred by the
judgement debtor against the decree passed by the trial Court wherein it
could have been possible for her to have raised a ground as regards
pecuniary jurisdiction of the trial Court. The decree passed by the trial Court
only for the reason that it was lacking pecuniary jurisdiction cannot be held
to be a nullity and at best can be said to be voidable. Objection to its
executability on ground of lack of pecuniary jurisdiction of the trial Court
was not permissible to be raised in execution proceeding. The executing
Court has hence not committed any error in rejecting the objection preferred
by the judgment debtor.
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15. As a result of the aforesaid discussion, I do not find any illegality
or perversity in the impugned order. The petition is found to be devoid of
any merits and is hereby dismissed.
(PRANAY VERMA)
JUDGE
Shilpa
