1982 Supreme(MP) 678

IN THE HIGH COURT OF MADHYA PRADESH
G.L. OZA, J.
Wakf Board, M.P - Petitioner
Versus
Vishandas - Respondent
C. Revn. No. 727 of 1982 (J)
Decided On : 13-08-1982

Headnote:(1) Civil Procedure Code, 1908 – S. 37 – scope of – it pertains to execution only.

       (2) Civil Procedure Code, 1908 – O. 7, R. 10 – application filed in wrong Court – should be returned for proper presentation.

       (3) Merger – decree of trial Court appealed against – it mereges in appellate decree.

       (4) Wakf Act, 1954 – S. 57 (3) – application under – forum for – it lies in the Court which passes decree – decree passed by appellate Court – application should be filed before it alone – executing Court has no jurisdiction.

        Short Note

       1. It appears that N.A. No.1 filed a suit and obtained a decree against non – applicants 2, 3, & 4. This decree was ultimately maintained by the appellate Court. After the appellate decree was passed, it was put in execution. Before the executing Court, an application was submitted by the petitioner under S. 57 (3) of the Wakf Act, 1954 for a declaration of the decree to be void. The learned Court below rejected the application by holding that as the decree was passed by the appellate Court, an application could not be entertained by the trial Court. It is against this that the present revision petition has been filed.

       Held: This provision provides for declaration of a decree or an order to be void on an application being made by the Wakf Board and to which Court the application could be made, has been provided and it states 'the Court.' A perusal of the language of this sub – clause, therefore, indicates that if a decree or order is passed in any suit or proceedings, naturally the decree or order will be passed in any suit or proceedings by any Court before which the suit or proceedings was pending and by use of the term 'the Court' in the later part of the section which can entertain an application under this sub – clause of section 57, it is clearly indicated that the Court which can entertain an application will be 'the Court' which had passed the decree or an order. It is therefore, clear from the language of section 57 (3) that an application under this clause could only be entertained by the Court which passed the decree or the order which is sought to be challenged by this application u/s 57 (3).

       2. It is not disputed that in the present case although the trial Court had passed the decree, that decree was maintained on appeal by the appellate Court and it is also settled that in such a situation, the trial Court's decree merges in the appellate Court's decree and it will be a decree passed by the appellate Court which is ultimately to be executed. Section 37 of the C.P.C. no doubt provides for execution of a decree by the trial Court even if the decree is passed by the appellate Court, but section 37 pertains to execution only. It is therefore, clear that the decree which ultimately is being challenged by this application by the petitioner Wakf Board, is a decree which was passed by the appellate Court and therefore, in view of the language used in section 57 (3), the application could only be entertained by the appellate Court and to this extent the view taken by the learned Court below could not be said to be erroneous.

       3. When the learned Court below came to the conclusion that this application could only be entertained by the appellate Court which bad passed the decree on appeal, it ought to have passed a direction for return of. the application to be presented to the proper Court rather than to reject it. To this exigent, therefore, the Court below has committed material irregularity in exercise of its jurisdiction. AIR 1937 Nag. 381 and 1976 JLJ 340 relied on. Revision allowed.