IMPORTANT POINT
The main legal point established in the judgment is that a decree can be considered a nullity if the necessary party is not made a party to the proceeding and if the required notice is not served as per the relevant legal provisions.

JUDGMENT :

Apurba Sinha Ray, J.

1. The matter relates to execution of a transferred decree from Hon’ble High Court at Delhi.

2. The instant application has been filed from the side of the KMC under Section 47 Code of Civil Procedure, 1908 contending that the decree passed was in fact a nullity since the KMC was not made a party to the proceeding. It is further contended that as per Section 587 of the Kolkata Municipal Corporation Act, 1980 (the Act, 1980 in short hereinafter) no suit is maintainable against any municipal authority or any officer or employee of the Corporation in respect of anything done lawfully and in good faith with due care and attention under the Act, 1980 or the rules and regulation made thereunder.

3. The learned counsel appearing for the KMC Mr. Dhruba Ghosh has also contended that Section 586 of the Act, 1980 provides that no suit shall be instituted in any court against any municipal authority or qany officer or employee of the corporation without serving necessary notice in writing to the concerned office of the KMC.

4. It appears that though the decree-holder instituted the relevant suit against three of its officers, neither the KMC was made a party to the proceeding nor any notice was served upon the KMC under Section 586 of the Act, 1980. As, the decree has been passed without impleading the necessary party like KMC and without serving notice to the office of the corporation, the decree was passed without jurisdiction and therefore it is a nullity.

5. The learned counsel on behalf of the decree-holder Mr. Rupak Ghosh has submitted that the decree was appealed against and such appeal was filed by the KMC before the Hon’ble Division Bench in High Court, Delhi and all these points were taken up during the hearing of the appeal but such pleas of the KMC were rejected on the ground that it would not cause any prejudice to the KMC and such technicalities on the point of law were not accepted by the Division Bench. The matter was again taken to the Hon’ble Supreme Court and the Hon’ble Supreme Court dismissed the special leave application. The learned counsel has further submitted that the KMC has already paid the decreetal amount and this execution proceeding is pending for interest accrued upon the decreetal amount and most interestingly 25 lakhs against such outstanding dues have been paid by the KMC. The instant proceeding under Section 47 CPC has been brought to frustrate the decree passed against the KMC and also to drag the proceeding as long as the KMC can. Learned counsel has further contended that the plea of constructive res judicata squarely applicable in this case.

6. In reply the learned counsel appearing for the judgment-debtor has submitted that the definition of decree as found in Section 2(2) of Code of Civil Procedure shows that it means the formal expression of an adjudication which conclusively determines the rights of the parties with regard to or any of the matters in controversy in the suit. According to him as the KMC was not made a party it could not agitate the relevant issues before the Court at Delhi. Interestingly, the KMC was made parties in the instant execution proceeding in the year 2022. As the requirements of Section 586 and 587 of KMC Act were not complied with, the decree passed by the Court at Delhi and confirmed by the Division Bench of the High Court at Delhi is in fact a nullity and as such the instant execution proceeding cannot be proceeded with.

7. The learned counsel for the judgment-debtor/petitioner has submitted an unreported decision of the Hon’ble Supreme Court passed in Civil Appeal No. 9695 of 2013 in support of his contention that the plea of constructive res judicata is not applicable in this case.

Decisions with Reasons

8. It is settled law that executing court cannot go beyond the decree passed except when there is a jurisdictional error or when the decree is a nullity. In this case resistance to the execution of the impugned decree was made from t