A decree passed by a court without jurisdiction is a nullity; jurisdiction questions can be raised in execution proceedings regardless of prior acceptance.

ORDER :

V.SRISHANANDA, J.

1. Heard Sri. K. Srihari, learned counsel for the revision petitioner and Smt. Dharani for Sri. Ajith Shetty, learned counsel for the respondent.

2. Judgment Debtor in Execution Case No.76/2015 on the file of II Additional Civil Judge and JMFC, Kundapura is the Revision petitioner challenging the Order passed on I.A. No.1 filed under Order XXI Rule 50 read with Section 151 of the Code of Civil Procedure dated 18.06.2022.

3. Facts in the nutshell which are at most necessary for disposal of the present revision petition are as under:

3.1 Respondent/Decree Holder filed a suit in O.S. No.161/2005 which came to be decreed on 27.11.2013. Judgment debtor did not challenge the decree before the Appellate Court. Hence decree became final. To execute the decree, Execution Case No.76/2015 came to be filed.

3.2 When the execution case was pending, Judgment Debtor appeared and filed an application under Order XXI Rule 50 read with Section 151 of the Code of Civil Procedure. Same was opposed to by the Decree Holder by filing detailed written objections.

3.3 Learned trial judge in the Executing Court heard the arguments of the parties and by impugned order dated 18.06.2022 dismissed the application. Same is challenged before this Court in this revision.

4. Sri. K. Srihari, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contained that reasoning assigned by the learned Trial Court, learned Trial Judge in paragraphNos.10 and 11 do not support the decision taken by the learned Trial Judge in dismissing the application.

5. He would further contend that the suit itself was not maintainable before the Trial Court in view of the provisions of the Karnataka Protection of Interest of Depositors in Financial Establishment Act (for short KPID Act).

6. He would further contend that when the suit itself was not maintainable before the Court below, Executing Court can revisit into the jurisdictional aspect as a decree passed by a Court without jurisdiction is a nullity. Therefore such decree cannot be executed even though the judgment Debtor has not taken up such contention during the original proceedings.

7. Per contra, Ms. Dharani for respondent supports the impugned order.

8. In reply, Sri. K. Srihari would contend that a decree passed by a Court without jurisdiction cannot be executed and to that extent the Executing Court can hold an enquiry and then pass suitable orders.

9. In support of his submissions, he placed reliance on two judgments of the Hon'ble Apex Court in the case of Sushil Kumar Mehta versus Gobind Ram Bohra reported in (1990) 1 Supreme Court Cases 193 wherein, at paragraph No.26 it has held as under:

"26. 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 jud 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 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 stri