Back
2011 Supreme(Mad) 2450
2011 (2) MWN(Civil) 433
High Court of Judicature at Madras
S. TAMILVANAN
S. Sachidanandam & Another
Versus
D. Kugan
C.R.P. NPD. No.3500 of 2001
Decided On: 29-04-2011
For the Petitioners:Shyamala, A. Subramania Iyer, V.M. Rajavelu, Advocates.
For the Respondent:Nilaphar, R. Subramanian, Advocates.
A decree passed without jurisdiction is a nullity and cannot be re-appraised in execution proceedings.
Headnote:
Ejectment Suit - Jurisdictional Challenge - Code of Civil Procedure, Section 47 - Summary: The court discussed the jurisdictional challenge raised by the respondent under Section 47 of the Code of Civil Procedure, highlighting the legal principle that a decree passed without jurisdiction is a nullity and cannot be re-appraised in execution proceedings. The court set aside the impugned order and directed the lower court to dispose of the matter solely on merits.
Fact of the Case:
An Ejectment Suit was filed by the petitioners against the respondent, seeking possession of the property. The suit was decreed, and the respondent filed a petition to dismiss the execution proceedings, claiming lack of jurisdiction by the Small Causes Court.
Finding of the Court:
The court found that the impugned order was illegal and against judicial discipline, as the executing court cannot re-appraise the evidence and reverse the view taken by the trial court, which was confirmed by the higher court.
Issues: Jurisdictional challenge under Section 47 of the Code of Civil Procedure, re-appraisal of evidence in execution proceedings, and the plea of fraud by the respondent.
Ratio Decidendi: A decree passed without jurisdiction is a nullity and cannot be re-appraised in execution proceedings. The executing court should maintain judicial discipline and decide matters solely on merits.
Final Decision: The Civil Revision Petition was allowed, the impugned order was set aside, and the lower court was directed to dispose of the matter solely on merits.
1. Heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondent.
2. Challenging the order dated 06.04.2000 made in M.P. No.213 of 1994, in E.P. No.133 of 1993 in Ejectment Suit No.47 of 1992 on the file of the II Judge, Court of Small Causes, Chennai, the revision has been preferred.
3. It is seen that an Ejectment Suit was filed by the first petitioner herein and his brother S. Mallikeswaran as plaintiffs against the respondent seeking a decree directing the respondent/ defendant to deliver possession of the property and other consequential relief. After the trial, by judgment dated 27.07.1993, the Small Causes Court decreed the suit as prayed for and the respondent/defendant was directed to vacate and hand over the possession within two months from the date of the decree. Aggrieved by which, the respondent herein preferred C.R.P. No.3385 of 1993 before this Court. This court by order dated 27.04.1994, after hearing both sides and considering the materials available on record dismissed the revision.
4. After the death of Mallikeswaran, the second petitioner was impleaded as his legal representative.
5. The respondent herein filed M.P. No.213 of 1994 under Section 47 of the Code of Civil Procedure before the E.P. Court to dismiss the E.P. on the ground that the Small Causes Court had no pecuniary jurisdiction on the date of filing of the Ejectment Suit. After hearing both sides, the II Small Causes Court, Chennai by the impugned order dated 06.04.2000 allowed the Miscellaneous Petition filed in M.P. No.213 of 1994 holding that the decree passed in the Ejectment Suit No.47 of 1992 by the IV Court of Small Causes on 27.07.1993 as nullity and unexecutable. Aggrieved by which, this revision has been preferred by the petitioners herein.
6. Ms. Shyamala, learned counsel appearing for the revision petitioners herein drew the attention of this court to the findings of the court below. It is seen that the respondent herein had raised a defence including in the jurisdictional aspect before the court below in the Ejectment Suit No.47 of 1992. After the trial, considering the evidence and the legal aspects, the suit was decreed. Aggrieved by the judgment and decree, the petitioners preferred revision in C.R.P. No.3385 of 1993 and that was dismissed by this Court. Learned counsel appearing for the revision petitioner submitted that the court below has passed the impugned order against law and against the decision of this Court and pleaded to set aside the same.
7. Per contra Mrs. Nilaphar, learned counsel appearing for the respondent submitted that fraud has been played by the petitioners in getting the decree in the Ejectment Suit, hence, M.P. No.213 of 1994 filed by the respondent was allowed. In support of her contention the learned counsel appearing for the respondent relied on the following decisions:
(i) Surinder Nath Kapoor vs Union of India and others reported in AIR 1988 Supreme Court 1777 wherein the Hon'ble Supreme Court has held as follows:
"There can be no doubt that when an order is made for the payment of a fictitious sum without giving any opportunity to a person, against whom the order is made, to show cause against the passing of such an order for the said sum, the order is a nullity. In other words, in the eye of law it will be deemed that there was no existence of such an order and any step taken pursuant to or in enforcement of such an order will also be a nullity. It will be tantamount to selling a property in execution of a decree when the decree has no factual existence. In such a case also, the sale will be null and void. the garnishee order that was passed in the instant case, by the IAC (Asstt), Range-II for the fictitious sum would, therefore, be null and void and any sale held pursuant to such an order is also a nullity."
(ii) Official Trustee, W.B. and others vs Sachindra Nath Chatterjee and another reported in AIR 1969 Supreme Court 823 wherein the
