Decree obtained from Courts of competent jurisdiction cannot be allowed to be rendered null and void

B. L. HANSARIA, J.

( 1 ) A decree obtained from the trial Court and upheld by the first and second appellate (or revisional) Courts cannot be allowed ordinarily and normally to be defeated at the execution stage, because that would render all the previous effort and exercise futile. Time, money and energy of everybody would be a loss. Decrees obtained from Courts of competent jurisdiction cannot be allowed to be rendered paper tigers; they have to be treated as alive and kicking. The only exception known to law in this regard is where a decree can be said to be a nullity, the reason for the same being that there would really be no decree to execute; and it is because of this that the executing Court would not incur the reproach that it is going behind the decree. This is well established law and if any citation is needed the same is Sunder Dass v. Ram Parkash, AIR 1977 SC 1207, in paragraph 3 of which this enunciation finds place.

( 2 ) THE important question is as to when a decree can be said to be a nullity. This question too is no longer res integra as right from Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 : (1954 All LJ 551) it has been stated that a decree passed by a Court without jurisdiction is a nullity and its invalidity could, therefore, be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution. From this it follows that an executing Court cannot question the legality or correctness of the decree, as observed in paragraph 3 of Sunder Dass (supra ). As to when lack of jurisdiction can also be a ground to stall execution of a decree came up for decision in Hira Lal v. Kali Nath, AIR 1962 SC 199. In that case, it was held that the invalidity of a decree can be challenged in an execution proceeding 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 would 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.

( 3 ) IN that case, the lack of territorial jurisdiction was not held to be a case of inherent lack of jurisdiction, because it was held that objection relating to local

jurisdiction does not stand on the same footing as an objection to the competence of a Court to try a case, because competence goes to the very root of jurisdiction whereas an objection relating to local jurisdiction can be waived which liberty was said to have given a statutory recognition by Section 21 of the Code of Civil Procedure.

( 4 ) FACTS of the Case. In the present case, the petitioner had instituted Title Suit No. 243 of 1953 in the Court of First Munsif, Cuttack on 23-12-1953 for recovery of khas possession, which came to be decreed on 30-3-1965 on contest. The defendants challenged the decree in Title Appeal No. 134 of 1965, which was dismissed on 19-3-1974. That dismissal was challenged before this Court in Civil Revision No. 252 of 1974, to be dismissed on 15-10-1976. The decree as finally affirmed by this Court was sought to be executed in Execution Case No. 110 of 1981 in which a petition was filed under Section 47 of the Code of Civil Procedure, which was registered as Misc. Case No. 98 of 1982 stating that the execution case was not maintainable. The same has come to be accepted by the executing Court by its order dated 10-3-1987 on two grounds : (1) it was barred by limitation; and (2) the suit property having vested in the State under the provisions of the Orissa Estates Abolition Act, 1951 (for short, "the Act"), the decree-holder lost his right to execute the decree as the property was no longer available for execution. It is this order of the executing Court which has been assailed in this petition.

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