Wrong Decision of court is not nullity

 It is useful to extract the following excerpts from the Judgment of the Supreme Court in Ittyavira athai v. Varkey Varkey, .

"Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned Counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities....... All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duty of the Court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the Court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Code of Civil Procedure. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity."

14. The same principle has been reiterated in Bhawarlal Bhandari v. Universal H.M.L. Enterprises, . In the said decision it was held by the Supreme Court that "even if the decree was passed beyond the period of limitation it would be an error of law or at the highest a wrong decision which can be corrected in appellate proceeding and not by the executing Court which was bound by such decree".1

Andhra High Court

Ch. Rama Chander Rao vs P. Mallesham (Chinna) on 11 October, 2002

Equivalent citations: 2002 (6) ALD 527, 2003 (1) ALT 26

G. Rohini, J.

1. This Civil Revision Petition arises out of execution proceedings in pursuance of a money decree passed in O.S. No. 2188/1991 on the file of the Court of the VIII Junior Civil Judge, City Civil Court, Hyderabad.

2. The revision petitioner, who is the judgment-debtor, is assailing the order, dated 19.12.2000, in E.A. No. 428/1999 in E.P. No. 275/1998 under which the Court below rejected the objections raised by him and ordered execution of the decree in O.S. No. 2188/1991. The respondent herein is the plaintiff/decree holder. For the sake of convenience the parties shall be hereinafter referred to as the judgment debtor and decree holder.

3. The brief facts, which are not in dispute and which are relevant for the determination of the issue in question, are as follows. The decree holder/plaintiff filed O.S. No. 2188 of 1991 seeking a decree for recovery of Rs. 10,000/- alleged to be due from the Judgment debtor. The said suit was decreed ex parte on 18.8.1992. Though the judgment debtor filed I.A. No. 1045/1992 for setting aside the ex parte decree, the same was dismissed for default on 9.6.1998. It appears that the judgment debtor filed LA. No. 1072/1998 seeking to set aside the order of dismissal in LA. No. 1045/1992, but the said petition was also dismissed on 27.7.1999. In the meanwhile, the decree holder filed E.P. No. 75/1998 for execution of the decree, dated 18.8.1992, in O.S. No. 2188/1991. The judgment debtor filed E.A. No. 428/1999 under Section 47 of C.P.C. seeking dismissal of E.P. No. 275/ 1998 contending inter alia, that the execution petition was not maintainable, as the decree itself was in executable since the suit claim was barred by limitation. The decree holder opposed the said application by filing a counter stating that the application was misconceived and nothing but an attempt to further drag on the proceedings. The Court below, on consideration of the rival contentions, by order, dated 19.12.2000, dismissed E.A. No. 428/1999.

4. Aggrieved by the said order, the judgment-debtor has come up with the present civil revision petition.

5. I have heard the learned Counsel for the revision petitioner-Sri W.B. Srinivas, who has contended that under Section 47 of CPC, it is open to the executing Court to determine all questions arising between the parties to the suit, and, therefore, the executing Court ought to have accepted the objection raised by the judgment debtor that the decree itself is a nullity, since the suit claim was admittedly barred by limitation.

6. I have perused the order under revision as well as the other material on record. Admittedly, the application filed by the judgment debtor to set aside the ex parte decree was dismissed, and as such the decree dated 18.8.1992, though ex parte, has become final. Thus there is a valid and subsisting decree against the judgment debtor.

7. The contention of the learned Counsel for the revision petitioner is that admittedly the judgment debtor was set ex parte even before he filed written statement and, therefore, there was no opportunity for him to bring to the notice of the trial Court that the suit claim was barred by limitation. Learned Counsel contends that the question of limitation which was not raised in the suit and decided by the trial Court can be raised before, and determined by, the executing Court under Section 47 of C.P.C. In support of his contention, he placed reliance on B.V. Patankar and Ors. v. C.G. Sastry, , and A.V. Hanifa v. Salima Dhanu, .

8. Section 47 of Code of Civil Procedure runs as follows:

"47. Questions to be determined by the Court executing decree :--(1) 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 and not by a separate suit.

2.xxxxxxx

3.xxxxxxx"

9. The law is well settled that an executing Court cannot go behind the decree. The only exception is where the decree is passed by a Court lacking inherent jurisdiction and is a nullity, it is open to the executing Court to go behind the decree and determine the questions raised. However, if it is a mere erroneous exercise of jurisdiction, it is not open to the executing Court to go behind the decree. In such an event, the only course available to the aggrieved party is to challenge the decree by filing an appeal.

10. In State Bank v. Kukundas Raj & Sons, , a Full Bench of this Court held as follows:

"A Court executing a decree has to execute the decree as it is and cannot go behind it unless it is a nullity. It is not competent for it to re-open the case by tracing the history of the transaction which resulted in the liability under the decree."

11. In V. Appannammanayuralu v. B. Sreeramulu, , a Division Bench of this Court explained what is "lack of inherent jurisdiction".

" ..the Court, which has passed a decree, is lacking in inherent jurisdiction only when 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 could 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."

12. Then the question is where the Court failed to consider the question of limitation and grants a decree though the suit is barred by limitation, whether such a decree is a nullity and whether such a question can be gone into by the executing Court under Section 47 of Code of Civil Procedure. It is true that under Section 3 of the Limitation Act every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as a defence. But where a Court having jurisdiction over the subject-matter and the party, passes a decree it cannot be treated as a nullity even if the suit was one barred by time. It is not a case of the Court lacking in inherent jurisdiction. The failure of the Court to consider the question of limitation would be a mere error of law which can be corrected in the manner laid down in Code of Civil Procedure. Limitation is a question of procedure and not of jurisdiction, and therefore, it cannot be said that the decree passed without considering the question of limitation is one passed without jurisdiction. Such a decree cannot be termed as a nullity. Therefore, the question of limitation cannot be raised before, and determined by, the executing Court under Section 47 of Code of Civil Procedure.

13. It is useful to extract the following excerpts from the Judgment of the Supreme Court in Ittyavira athai v. Varkey Varkey, .

"Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned Counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities....... All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duty of the Court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the Court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Code of Civil Procedure. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity."

14. The same principle has been reiterated in Bhawarlal Bhandari v. Universal H.M.L. Enterprises, . In the said decision it was held by the Supreme Court that "even if the decree was passed beyond the period of limitation it would be an error of law or at the highest a wrong decision which can be corrected in appellate proceeding and not by the executing Court which was bound by such decree".

15. Therefore, the contention of the learned Counsel for the petitioner that the petitioner is entitled to raise the question of limitation in execution proceedings is untenable and cannot be accepted.

16. In the case of B.V. Patankar (supra), relied upon by the learned Counsel, the question raised was whether the Court ignored the provisions of the Rent Control Act prohibiting eviction of tenant and passed an order of delivery of possession. In the circumstances, the Apex Court held that such an order can be set aside and an order of re-delivery of possession to the tenant can be passed on an application under Section 47 of C.P.C. The facts in the present case are entirely different and, therefore, the ratio laid down by the Apex Court in that case is not of any assistance for deciding the question that arose for determination in the present case.

17. The decision of Madras High Court in A.V. Hanifa v. Salima Dhanu (supra) also does not in any way lend support to the contention of the learned Counsel for the revision petitioner. On the other hand, it is clearly laid down in the aforesaid case that if a party omits to raise a question, which ought to have been raised before the trial Court at the stage of trial; he cannot raise it under Section 47 of CPC before the executing Court.

18. For the reasons stated supra, in my considered opinion, the order under revision does not suffer from any illegality or material irregularity in exercise of jurisdiction vested in it under law. In the circumstances, the civil revision petition is dismissed at the stage of admission. No costs.