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2026 Supreme(Cal) 40
IN THE HIGH COURT AT CALCUTTA
SUGATO MAJUMDAR, J.
Joynarayan Sharma Since Deceased Rep. by Gouri Sharma – Appellant
Versus
Shyam Pyari and Others – Respondents
SA No. 1436 of 1964
Decided On : 21-05-2026
For the Appellants : Amal Krishno Saha, Debnath Mahata
A decree passed by a court of competent jurisdiction, even if affected by procedural irregularities, cannot be challenged via collateral proceedings in a separate suit. Such a decree remains legally binding and effective unless specifically set aside by a superior court in a duly constituted proceeding.
Headnote:(A) Civil Procedure Code, 1908 - Section 47 and Order XXIII - Scope - No separate suit is maintainable to agitate a dispute between original parties to a previous suit - Embargo on re-litigation - Section 47 mandates that all questions arising between parties to the suit be determined by the court executing the decree rather than a separate suit. (Para 17)
(B) Decree - Nullity versus irregularity - A decree suffering from procedural irregularity is not a nullity - Collateral attack on a competent court's decree is impermissible - Distinction exists between lack of jurisdiction and procedural deviations - A decree is not rendered inexecutable merely because of alleged procedural flaws if the court that passed it had inherent jurisdiction. (Para 18)
Facts of the case:
The appellant sought a declaration of full ownership and recovery of possession, challenging prior decrees as void. The dispute involved overlapping claims of title, auction sales, and previous compromise decrees settled by court. The appellant argued that the earlier decree was void and therefore the subsequent auction and transfers were invalid.
Findings of Court:
The court observed that the challenged decree was passed by a court of competent jurisdiction. Since the issues were not related to a lack of authority but rather alleged procedural irregularities, the decree remained effective and could not be nullified through a collateral civil action. The concurrent findings of the lower courts were upheld.
Issues: Whether a decree passed in a prior suit can be declared a nullity in a subsequent proceeding and whether the bar regarding re-litigation applies when the previous decree is challenged on the basis of alleged procedural irregularities.
Ratio Decidendi: A decree is only set aside if it is a total nullity due to lack of authority. Where a decree is merely affected by procedural illegality, it remains valid until formally set aside by a superior court. Lateral challenges to such decrees in separate civil suits are rejected under the doctrine of stability of judicial decisions.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. basis of the suit and factual background. (Para 1 , 2) |
| 2. conflicting contentions and claims of title ownership. (Para 3 , 4 , 5 , 6 , 7 , 8) |
| 3. framed issues and lower court adjudication records. (Para 9 , 10 , 11 , 12) |
| 4. appellant's challenge regarding jurisdiction and section 47 cpc. (Para 13 , 14) |
| 5. distinction between procedural irregularity and lack of jurisdiction. (Para 15 , 16 , 17 , 18 , 19) |
| 6. dismissal of appeal and final order. (Para 20 , 21 , 22) |
JUDGMENT :
SUGATO MAJUMDAR, J.
1. The instant Second Appeal was filed against the judgment and decree dated 31/03/1964 passed by the Sub-ordinate Judge, 2nd Court, Howrah in Title Appeal No. 180, 196 of 1963.
2. To appreciate the factual background of the case, the averments made in the plaint should be looked into. The plaint case in nutshell is as follow:-
a) One Biru Maharaj was owner of the property as described in Para.1 of the plaint.
b) Biru Maharaj expired in the month of June 1944 leaving behind his widow, the Respondent No. 1/Defendant No. 1.
c) The Defendant No. 1 executed a deed of transfer in favour of the Plaintiff on 08/04/1949, but she refused to register. An appeal was preferred as a result of which the deed was registered on 10/11/1949.
d) Defendant No. 2 filed the Civil Suit No. 440 of 1948 claiming to be the adopted son of the said Biru Maharaj.
e) The Civil Suit No. 440 of 1948 was disposed of on compromise on 29/07/1949. A solenama was filed where the Defendant No.1 accepting the Defendant No.2 as the adopted son of the said Biru Maharaj. According to the compromise decree, the Defendant No.2 became co-owner of the suit property. According to the Plaintiff his right, title and interest in the suit property was unaffected and he had already got the full ownership of the property.
f) Defendant No. 3 and 4 instituted the Civil Suit No. 81 of 1945 against the Defendant No. 1 claiming money. The suit was decreed and the suit property was sold in auction to them. Subsequently, the Defendant No.1 filed an application praying for setting aside of the auction sale. The suit ended in compromise when the Defendant No.1 paid Rs.700/- and the auction sale was set aside. The Defendant No. 4 filed an application for review of the order of compromise contending that he did not express consent to the compromise but the same was dismissed.
g) Therefore, the Defendant No. 4 instituted a civil suit being 107 of 1948 and got an ex parte decree in respect of the suit property. By virtue of the decree, the Defendant No. 4 became co-owner in respect of the suit property. According to the Plaintiff, the decree was passed without jurisdiction and is void ab initio.
h) The Plaintiff is the bona fide purchase of the suit property for valuable consideration. The Defendants had been trying to deprive the Plaintiff from his legitimate right in the property.
i) The Plaintiff instituted the original suit, praying for declaring his full right, title and interest in the suit property, decree for delivery of possession along with other reliefs.
3. The original Defendant Nos. 1, 2, 3 & 5 filed written statements contesting the suit. The Defendant No. 1 filed written statement wherein she denied execution of any registered deed in favour of the Plaintiff and the Defendant No. 5 since she was a pardanashin and illiterate lady.
4. Contentions of the written statement filed by the Defendant No. 2 were as follow, in sum and substance:
i) The original Defendant No. 2 did not inherit the property of the aforesaid Biru Maharaj and that the Defendant No. 1 never executed any deed of conveyance in favour of the original Plaintiff.
ii) The answering Defendant No. 2 was the sole legal heir of the aforesaid Biru Maharaj and the Defendant No. 2 accepted him as the adopted son of Biru Maharaj.
iii) The Title Suit No. 440 of 1948 was disposed of on compromise. A sham and colourable sale deed in favour of the Plaintiff had been executed. The Defendant No. 2 was declared as the adopted son of Biru Maharaj
