A distinction must be drawn between a case where the minors are not adequately represented from the commencement and the proceeding at its inception, therefore, is a nullity and a case where the minors are adequately represented and there is a duly constituted proceeding where the guardian acts for some time and then omits to take steps.
it was staled that it was not open to a judgment-debtor on the execution side to raise any objection challenging the very foundation of a decree, that an objection that the decree was collusive or in respect of a non-existing debt is not one relating to the execution, discharge or satisfaction of the decree and cannot be tried under Section 47, C.P.C., and that such a question can only be tried in a regular suit brought for the purpose. Puranik, J. in the Nagpur case pointed out that Section 47 takes for granted that a valid decree exists and all questions arising between the parties to the suit in which the decree was passed on their representatives and relating to execution, discharge or satisfaction of the decree are to be determined by the court executing the decree and not by a separate suit. If the judgment-debtors contend that they were not properly represented and were not thus parties to the decree they cannot come Under Section 47 as if they were parties to the suit. This is a matter, therefore, which has to be decided by a separate suit. I am inclined to agree with this principle. Where the objection is that the decree is a nullity because judgment-debtors were not duly represented and, therefore, were not strictly parties to the suit, that must be a matter left to be agitated in an independent action and not to be within the ambit of Section 47 of the Civil P. C.
1. The decree-holder in a title suit assails in this application Under Section 115 of the Civil P. C. the order of the Executing Court entered on an application Under Section 47 of the Civil P. C. holding that the final decree was not executable.
2. The short facts relevant for the point arising for consideration are these :
The plaintiff-petitioner filed two suits, being Money Suit No. 320 of 1965 for realisation of a specific amount and Title Suit No. 129 of 1966 for dissolution of a partnership and rendition of accounts. The two suits were heard analogously and decreed on 22-7-68. The defendant preferred Title Appeal No. 115 of 1968 and Money Appeal No. 31 of 1968 against the respective decrees. Money Appeal No. 31 of 1968 was dismissed and the Title Appeal was allowed. Thereupon the plaintiff-petitioner preferred Second Appeal No. 7 of 1970 against the reversing decree of the Title Appeal and the defendant preferred Second Appeal No. 4 of 1970 against the affirming decree in the Money Appeal. During the pendency of these two appeals before this Court, the sole defendant died on 1-12-72 leaving behind his widow, 3 sons and 4 daughters. In defendant's Second Appeal No. 4 of 1970 the legal representatives were substituted on their own asking and in Second Appeal No. 7/70, the plaintiff-appellant took steps for bringing the legal representatives of the deceased defendant on record. Second Appeal No. 4 of 1970 was dismissed and the money decree became final. Second Appeal No. 7 of 1970 was remanded to the lower Appellate Court on the points indicated in this Court's judgment. After remand, the legal representatives were heard and their appeal was dismissed on contest on 21-12-73. As the legal representatives of the defendant did not prefer any further appeal, the appellate decree became final. The plaintiff levied Execution Case No. 9 of 1978 for realisation of the money decree and the amount was recovered. The plaintiff filed another independent execution case for realisation of the costs decreed in the preliminary decree in the Title Suit and the same was also paid by the legal represervatives of the original defendant. Final decree proceeding was taken by the plaintiff as the defendant's legal representatives failed to amicably finalise the accounts. In the final decree proceeding notices were issued to the opposite parties and the opposite party No. 1, the mother, received notices for self and as mother-guardian of the minor children on 2-9-74. When a pleader-commissioner was appointed in the final decree proceeding, the mother also appeared for herself and for the minor children as would appear from a memorandum of appearance available in the records of the original suit in the final decree proceeding. The memorandum is dated 14-12-74. The commissioner allowed time, but thereafter the mother did not take any steps. The commissioner submitted report after taking accounts and ultimately the final decree was passed. When Execution Case No. 6 of 1978 was levied for recovery of the money in terms of the final decree, the mother-guardian for self and as guardian of the minors as also some of the legal representatives of the original defendant who had become major in the meantime filed an objection. At their instance, the objection was treated as an application Under Section 47 of the Civil P. C. and Miscellanous Case No. 218 of 1978 was registered. In the executing court it was contended that the final decree was passed without getting the minors adequately represented and, therefore, the minors were not bound by the decree and the decree itself became a nullity. This objection of the judgment-debtors has been accepted. That is how the decree holder is before this Court in revision.
3. The question that is canvassed has two facets:--
(i) Whether the legal representatives of the original defendant were really unrepresented and, (ii) in case they, admittedly minors, went unrepresented, whether the decree was a nullity and could be ignored by the executing court.
I have already pointed out that when the original defendant died, the legal representatives were brought on record. The minor children were asked to be represented by their mother, the natural guardian. The natural guardian received summons from the court and entered appearance. She also participated in the final decree proceeding and even took steps before the Pleader-Commissioner but later chose not to appear in the proceedings and allowed the matter to get concluded ex parte.
Order 32, Rule 3 C.P.C. requires that where the defendant is a minor, the court, on being satisfied of the fact of minority, is to appoint a proper person to be guardian for the suit for such minor. This provision was obviously applicable to the facts of this case. The court had done its duty in ensuring that the minor children of the original defendant were appropriately represented by their natural guardian. If the final decree proceeding had been allowed to continue without the legal representatives of the defendant being represented, possibly it would be a clear case of the decision being a nullity. It is open to a guardian representing the interests of the minors after he or she is aware of the scope of the litigation while acting prudently not to contest the lis. This would be certainly a matter of prudent management of the minors' interests and, therefore, a matter within the competence of the guardian. Once the defendants are appropriately impleaded and represented, the duty under Rule 2 of Order 33, C. P. C. would come to an end and the proceeding before the court must be taken to have been duly constituted. A distinction must be drawn between a case where the minors are not adequately represented from the commencement and the proceeding at its inception, therefore, is a nullity and a case where the minors are adequately represented and there is a duly constituted proceeding where the guardian acts for some time and then omits to take steps.
4. Section 47 of the Civil P. C. provides :--
"All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree......"
That the decree was not obtained validly is strictly not a matter within the ambit of discharge or satisfaction. Does it come within the scope of execution?
5. In Mangal Prasad Hiraram v. Teklal, AIR 1946 Nag 275, a learned single Judge dealt with a question of this type and indicated:--
"...... The ordinary principle is that an executing Court cannot go behind a decree. A person dissatisfied with a decree on the ground that he was not properly represented can have the decree set aside by an independent suit"
6. These were the weighty observations of the Privy Council in Rashid-Un-Nissa v. Mahammad Ismail Khan, (1909) 36 Ind App 168. To the same effect are the observations of the Calcutta High Court in Kalipada Sirkar v. Hari Mohan Dalal, AIR 1917 Cal 844 as also of the Fatna High Court in Umar v. Mahabir Lal, AIR 1940 Pat 59. In Biharisingh v. Nawalsingh, AIR 1924 Nag 81, it was staled that it was not open to a judgment-debtor on the execution side to raise any objection challenging the very foundation of a decree, that an objection that the decree was collusive or in respect of a non-existing debt is not one relating to the execution, discharge or satisfaction of the decree and cannot be tried under Section 47, C.P.C., and that such a question can only be tried in a regular suit brought for the purpose. Puranik, J. in the Nagpur case pointed out that Section 47 takes for granted that a valid decree exists and all questions arising between the parties to the suit in which the decree was passed on their representatives and relating to execution, discharge or satisfaction of the decree are to be determined by the court executing the decree and not by a separate suit. If the judgment-debtors contend that they were not properly represented and were not thus parties to the decree they cannot come Under Section 47 as if they were parties to the suit. This is a matter, therefore, which has to be decided by a separate suit. I am inclined to agree with this principle. Where the objection is that the decree is a nullity because judgment-debtors were not duly represented and, therefore, were not strictly parties to the suit, that must be a matter left to be agitated in an independent action and not to be within the ambit of Section 47 of the Civil P. C.
7. Counsel for the judgment-debtors, on the other hand, indicated to me two decisions, one of this Court in Manoranjan Samanta Kumar v. Brundabati Veergam, AIR 1969 Ori 52, and the other of the Supreme Court in Ram Chandra Arya v. Man Singh, AIR 1968 SC 954. The facts of both the cases are somewhat different and the question that arises for consideration in this case did not fall for decision in either of those two cases. The principle which I have indicated leads to a reasonable conclusion that not by way of objection Under Section 47, C.P.C. but by an independent action the judgment-debtors were entitled to raise their objection against the decree. The executing Court, in my opinion, went beyond its jurisdiction in entertaining the objection and holding that the decree obtained in a properly constituted proceeding was a nullity and was, therefore, not executable.
8. The Civil Revision is accordingly allowed and the order of the executing Court is vacated. There would be no order for costs.
Print Page
it was staled that it was not open to a judgment-debtor on the execution side to raise any objection challenging the very foundation of a decree, that an objection that the decree was collusive or in respect of a non-existing debt is not one relating to the execution, discharge or satisfaction of the decree and cannot be tried under Section 47, C.P.C., and that such a question can only be tried in a regular suit brought for the purpose. Puranik, J. in the Nagpur case pointed out that Section 47 takes for granted that a valid decree exists and all questions arising between the parties to the suit in which the decree was passed on their representatives and relating to execution, discharge or satisfaction of the decree are to be determined by the court executing the decree and not by a separate suit. If the judgment-debtors contend that they were not properly represented and were not thus parties to the decree they cannot come Under Section 47 as if they were parties to the suit. This is a matter, therefore, which has to be decided by a separate suit. I am inclined to agree with this principle. Where the objection is that the decree is a nullity because judgment-debtors were not duly represented and, therefore, were not strictly parties to the suit, that must be a matter left to be agitated in an independent action and not to be within the ambit of Section 47 of the Civil P. C.
Orissa High Court
Bhagabat Sahu vs Parbati Samal And Ors. on 16 March, 1982
Equivalent citations: AIR 1982 Ori 186
R.N. Misra, C.J.1. The decree-holder in a title suit assails in this application Under Section 115 of the Civil P. C. the order of the Executing Court entered on an application Under Section 47 of the Civil P. C. holding that the final decree was not executable.
2. The short facts relevant for the point arising for consideration are these :
The plaintiff-petitioner filed two suits, being Money Suit No. 320 of 1965 for realisation of a specific amount and Title Suit No. 129 of 1966 for dissolution of a partnership and rendition of accounts. The two suits were heard analogously and decreed on 22-7-68. The defendant preferred Title Appeal No. 115 of 1968 and Money Appeal No. 31 of 1968 against the respective decrees. Money Appeal No. 31 of 1968 was dismissed and the Title Appeal was allowed. Thereupon the plaintiff-petitioner preferred Second Appeal No. 7 of 1970 against the reversing decree of the Title Appeal and the defendant preferred Second Appeal No. 4 of 1970 against the affirming decree in the Money Appeal. During the pendency of these two appeals before this Court, the sole defendant died on 1-12-72 leaving behind his widow, 3 sons and 4 daughters. In defendant's Second Appeal No. 4 of 1970 the legal representatives were substituted on their own asking and in Second Appeal No. 7/70, the plaintiff-appellant took steps for bringing the legal representatives of the deceased defendant on record. Second Appeal No. 4 of 1970 was dismissed and the money decree became final. Second Appeal No. 7 of 1970 was remanded to the lower Appellate Court on the points indicated in this Court's judgment. After remand, the legal representatives were heard and their appeal was dismissed on contest on 21-12-73. As the legal representatives of the defendant did not prefer any further appeal, the appellate decree became final. The plaintiff levied Execution Case No. 9 of 1978 for realisation of the money decree and the amount was recovered. The plaintiff filed another independent execution case for realisation of the costs decreed in the preliminary decree in the Title Suit and the same was also paid by the legal represervatives of the original defendant. Final decree proceeding was taken by the plaintiff as the defendant's legal representatives failed to amicably finalise the accounts. In the final decree proceeding notices were issued to the opposite parties and the opposite party No. 1, the mother, received notices for self and as mother-guardian of the minor children on 2-9-74. When a pleader-commissioner was appointed in the final decree proceeding, the mother also appeared for herself and for the minor children as would appear from a memorandum of appearance available in the records of the original suit in the final decree proceeding. The memorandum is dated 14-12-74. The commissioner allowed time, but thereafter the mother did not take any steps. The commissioner submitted report after taking accounts and ultimately the final decree was passed. When Execution Case No. 6 of 1978 was levied for recovery of the money in terms of the final decree, the mother-guardian for self and as guardian of the minors as also some of the legal representatives of the original defendant who had become major in the meantime filed an objection. At their instance, the objection was treated as an application Under Section 47 of the Civil P. C. and Miscellanous Case No. 218 of 1978 was registered. In the executing court it was contended that the final decree was passed without getting the minors adequately represented and, therefore, the minors were not bound by the decree and the decree itself became a nullity. This objection of the judgment-debtors has been accepted. That is how the decree holder is before this Court in revision.
3. The question that is canvassed has two facets:--
(i) Whether the legal representatives of the original defendant were really unrepresented and, (ii) in case they, admittedly minors, went unrepresented, whether the decree was a nullity and could be ignored by the executing court.
I have already pointed out that when the original defendant died, the legal representatives were brought on record. The minor children were asked to be represented by their mother, the natural guardian. The natural guardian received summons from the court and entered appearance. She also participated in the final decree proceeding and even took steps before the Pleader-Commissioner but later chose not to appear in the proceedings and allowed the matter to get concluded ex parte.
Order 32, Rule 3 C.P.C. requires that where the defendant is a minor, the court, on being satisfied of the fact of minority, is to appoint a proper person to be guardian for the suit for such minor. This provision was obviously applicable to the facts of this case. The court had done its duty in ensuring that the minor children of the original defendant were appropriately represented by their natural guardian. If the final decree proceeding had been allowed to continue without the legal representatives of the defendant being represented, possibly it would be a clear case of the decision being a nullity. It is open to a guardian representing the interests of the minors after he or she is aware of the scope of the litigation while acting prudently not to contest the lis. This would be certainly a matter of prudent management of the minors' interests and, therefore, a matter within the competence of the guardian. Once the defendants are appropriately impleaded and represented, the duty under Rule 2 of Order 33, C. P. C. would come to an end and the proceeding before the court must be taken to have been duly constituted. A distinction must be drawn between a case where the minors are not adequately represented from the commencement and the proceeding at its inception, therefore, is a nullity and a case where the minors are adequately represented and there is a duly constituted proceeding where the guardian acts for some time and then omits to take steps.
4. Section 47 of the Civil P. C. provides :--
"All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree......"
That the decree was not obtained validly is strictly not a matter within the ambit of discharge or satisfaction. Does it come within the scope of execution?
5. In Mangal Prasad Hiraram v. Teklal, AIR 1946 Nag 275, a learned single Judge dealt with a question of this type and indicated:--
"...... The ordinary principle is that an executing Court cannot go behind a decree. A person dissatisfied with a decree on the ground that he was not properly represented can have the decree set aside by an independent suit"
6. These were the weighty observations of the Privy Council in Rashid-Un-Nissa v. Mahammad Ismail Khan, (1909) 36 Ind App 168. To the same effect are the observations of the Calcutta High Court in Kalipada Sirkar v. Hari Mohan Dalal, AIR 1917 Cal 844 as also of the Fatna High Court in Umar v. Mahabir Lal, AIR 1940 Pat 59. In Biharisingh v. Nawalsingh, AIR 1924 Nag 81, it was staled that it was not open to a judgment-debtor on the execution side to raise any objection challenging the very foundation of a decree, that an objection that the decree was collusive or in respect of a non-existing debt is not one relating to the execution, discharge or satisfaction of the decree and cannot be tried under Section 47, C.P.C., and that such a question can only be tried in a regular suit brought for the purpose. Puranik, J. in the Nagpur case pointed out that Section 47 takes for granted that a valid decree exists and all questions arising between the parties to the suit in which the decree was passed on their representatives and relating to execution, discharge or satisfaction of the decree are to be determined by the court executing the decree and not by a separate suit. If the judgment-debtors contend that they were not properly represented and were not thus parties to the decree they cannot come Under Section 47 as if they were parties to the suit. This is a matter, therefore, which has to be decided by a separate suit. I am inclined to agree with this principle. Where the objection is that the decree is a nullity because judgment-debtors were not duly represented and, therefore, were not strictly parties to the suit, that must be a matter left to be agitated in an independent action and not to be within the ambit of Section 47 of the Civil P. C.
7. Counsel for the judgment-debtors, on the other hand, indicated to me two decisions, one of this Court in Manoranjan Samanta Kumar v. Brundabati Veergam, AIR 1969 Ori 52, and the other of the Supreme Court in Ram Chandra Arya v. Man Singh, AIR 1968 SC 954. The facts of both the cases are somewhat different and the question that arises for consideration in this case did not fall for decision in either of those two cases. The principle which I have indicated leads to a reasonable conclusion that not by way of objection Under Section 47, C.P.C. but by an independent action the judgment-debtors were entitled to raise their objection against the decree. The executing Court, in my opinion, went beyond its jurisdiction in entertaining the objection and holding that the decree obtained in a properly constituted proceeding was a nullity and was, therefore, not executable.
8. The Civil Revision is accordingly allowed and the order of the executing Court is vacated. There would be no order for costs.
No comments:
Post a Comment