G.M. Akbar Ali, J.@mdashThe appellant/revision petitioner is the 3rd defendant in the suit. The respondents 1 and 2 filed a suit for the relief of declaration of title to the suit property on the basis of a Will and also a declaration that the judgment and decree passed in O.S. No. 83/85 in favour of the appellants as null and void and also for a declaration that the sale deed executed by the 3rd respondent in favour of the 4th respondent under a power of attorney is also not valid.
The suit property,1 acre and 86 cents, is a part of an extent of 26 acres in resurvey No. 1178. The identification of the suit property is not in dispute. The entire 26 acres originally belonged to one Deva Aasirvatham, who is the grandfather of respondents 1 and 2 and father of the third respondent. The 3rd respondent is the mother of the respondents 1 and 2.
2. The appellant had entered into a sale agreement dated 7.9.1981 with the said Deva Aasirvatham in respect of 26 acres in resurvey No:1178. Under the sale agreement, the appellant was permitted to develop the entire area to form lay out of house sites and the vendor agreed to execute the sale deeds in favour of the various intending purchasers identified by the agreement holder. However, the recitals in the sale agreement would show that the vendor agreed to sell 1 acre for a sum of Rs. 2,400/- and has received a sum of Rs. 6,000/- as advance. The appellant developed the property into house sites and an area of 3 acres 8.25 cents was set apart for future development. 176 plots of house sites had been sold by the vendor and the agreement holder to the various purchasers on various prices and they seem to have shared the sale prices in the ratio of 65:35. The appellant filed a suit in O.S. No. 83/85 for a specific performance of contract in respect of remaining 3 acres 8.25 cents against the said Deva Aasirvatham before the District Munsif, Tirunelveli. Deva Aasirvatham entered appearance and resisted the suit. However, after filing of the written statement, he did not appear and an ex-parte decree was passed on 20.7.1989. Deva Aasirvatham died on 29.7.1996. An execution petition was filed in the year 1998.
3. The respondents 1 and 2 have filed the present suit in O.S. No. 77 of 2004 on the file of Principal District Munsif, Tirunelveli stating that Deva Aasirvatham had bequeathed property in their favour by a Will dated 10.5.96. According to the respondents 1 and 2 (here in after reffered as respondents) the Will was probated on 11.3.2003. Meanwhile, the appellants have impleaded the legal heirs of Deva Aasirvatham in the execution proceedings of O.S. No. 83/85 and the respondents 1 and 2 are also parties. The respondents have filed an application u/s 47 of CPC to declare that the decree is inexecutable and also for a declaration that the property under execution belongs to them under the Will. In the present suit, the following reliefs were sought for:
1. To declare the respondents 1 and 2 as absolute owners of the property which is 1 acre and 86 cents out of 26 acres in Re-Survey No. 1178 on the basis of the Will;
2. To declare the decree and judgment passed in O.S. No. 83/85 is null and void and
3. To declare a sale executed by the 2nd respondent in favour of the 3rd respondent dated 25.8.2003 as invalid.
4. The learned District Munsif, Tirunelveli framed triable issues in the suit and found that the respondents have not proved the execution of the Will and therefore, they are not entitled to the property. It is also found that the sale deed executed by the 3rd respondent in favour of the 4th respondent on the basis of power of attorney is not valid as the principal herself died a year before the date of sale deed.
5. As far as the legality and executability of the decree in O.S. No. 83 of 1985 is concerned, the trial Court found that though it is an exparte decree, it was passed by a competent court, having jurisdiction and the respondents cannot question the decree beyond the period of limitation.
6. As far as the application filed u/s 47 of the CPC is concerned, the issues involved were also the same, the petition was dismissed. The respondents preferred the appeal before the Principal Sub Court, Tirunelveli in A.S. No. 222 of 2004. They have also preferred a Civil Miscellaneous Appeal against the order passed u/s 47 application. The learned Subordinate Judge, on re-appreciation of the evidence and legal position concurred with the trial court on two issues namely, the respondents have not proved the execution of the Will and therefore they are not entitled for the title to the suit property and the sale deed executed after the death of the Principal of the Power of Attorney is not valid. However, the first appellate court proceeded on the footing that the suit filed by the appellant in O.S. No. 83/85 for a specific performance of the contract is not valid and the District Munsif Court which passed the exparte decree had no jurisdiction and therefore, granted a decree declaring the decree in O.S. No. 83/85 is null and void. Similarly, it has passed an order in Civil Miscellaneous Appeal filed against the order passed u/s 47 application. Aggrieved by both the findings, the appellants have preferred the second appeal before this Court When the Second Appeal was admitted, the following questions of law have been formulated:
1. Is the suit filed by the plaintiff to set aside the decree passed by the learned District Munsif, Tirunelveli in O.S. No. 83/85 is maintainable when there is no allegation of fraud or collusion in obtaining the decree?
2. Is the learned Subordinate Judge right in declaring that the decree passed in O.S. No. 83/85 on the file of District Munsif, Tirunelveli is not maintainable when the maintainability of the suit is not challenged by the defendant in the earlier suit in his written statement?
3. Is the learned Subordinate Judge right in declaring that the decree is not maintainable on the basis that the suit for specific performance is not maintainable on the agreement which should be canvassed only by way of an appeal u/s 96 of CPC against the judgment and decree passed in O.S. No. 83/85?
4. Is the learned Subordinate Judge right in declaring that the judgment and decree in O.S. No. 83/85 on the file of the District Munsif, Tirunelveli is not valid for want of jurisdiction when the question of jurisdiction is not challenged by the defendant in the written statement and also when the suit is valued on the basis of consideration mentioned in the sale agreement
5. Is the suit filed by the plaintiff in O.S. No. 77 of 2004 on the file of the Principal District Munsif, Tirunelvli to set aside the decree in O.S. No. 83/85 passed by the District Munsif, Tirunelveli which is after the statutory period, maintainable as the same is barred by limitation u/s 59 of the Limitation Act?
7. They have also filed Civil Revision Petition No. 743 of 2005 against the order passed in in the C.M.A. And the was transferred to this Court to be heard along with Second Appeal. Therefore, a common judgment is passed.
8. Though many substantial questions of law were formulated, the main point to be considered is that whether the first appellate court is right in declaring the judgment and decree in O.S. No. 83/85 is not valid for want of jurisdiction and also on the question of maintainability of a suit of specific performance for a part of property by showing the proportionate sale consideration.
9. Mr. M.V. Venkateaeshan, learned Counsel for the appellant submitted that the first appellate court has wrongly interfered with the well considered judgment of the trial court. The learned Counsel pointed out that the decree in O.S. No. 83/85 was passed in the year 1989 and the same has been questioned only in the year 2004 by the legal heirs of the judgment debtor. The learned Counsel pointed out that there is no allegation of fraud or collusion to set aside the decree. The learned Counsel also submitted that the maintainability of a suit of specific performance which was filed for the unenforced portion of the agreement cannot be questioned in a latter suit when the same was not raised in the earlier suit. The learned Counsel also pointed out that the question of jurisdiction was not raised in the earlier suit and the first appellate court has presumed that the value of the suit properties are more than Rs. 30,000/- and the learned Principal District Munsif has no jurisdiction to try the suit. The learned Counsel pointed out that the assumption of the first appellate court that the decree was passed by a court without jurisdiction is unfounded.
10. Mr. N. Vallinayagam, learned Counsel for Respondents would submit that the suit in O.S. No. 83/85 was not maintainable and the decree passed by the Munsif Court lacks jurisdiction and therefore, it is nullity. According to the respondents, a sale agreement was entered into between the said Deva Aasirvatham and the appellants fixing the sale price of Rs. 2400 per acre and the suit agreement is for an extent of 26 acres. The learned Counsel pointed out that the suit was filed for the execution of sale deed for 3 acres 8.25 cents and the sale consideration was fixed at Rs. 7602/- which is totally wrong. The learned Counsel further submitted that it was admitted by the appellants that the sales were effected fixing the sale price at Rs. 100 per cent and therefore, the value of 3 acres 8.25 cents is more than Rs. 38,000/- and the pecuniary jurisdiction of District Munsif, Tirunelveli was only Rs. 15,000/- at the time of filing of the suit. The learned Counsel also pointed out that the suit property in O.S. No. 83/85 was left out for future development which was not covered under the sale agreement and in any event, the decree is not executable for the simple reason that the vendor and the first appellant who developed the property shared the sale consideration in a ratio of 65:35 and the sale price fixed in the agreement was given a go by.
11. Heard both sides and perused the material available on record.
12. The decree and judgment passed in O.S. No. 83/85 is challenged in the present suit. O.S. No. 83/85 was filed by the appellant on the basis of the agreement dated 7.9.1981. The vendor Deva Aasirvatham and the appellant entered into an agreement and thereby vendor agreed to sell the property at the rate of Rs. 2400 per acre of a total extent of 26 acres in resurvey No. 1178.It is not in dispute that the appellant was permitted to develop and form a lay out plan and obtain approval from the authorities and sell the plots to intending purchasers and the vendor agreed to execute such sale. It is not in dispute that the appellant and the vendor executed more than 176 sales in respect of the plots covering an extent of 18 acres 24 cents. It is also not disputed that around 5 acres of land were set apart for laying roads. According to the appellant, the remaining portion of 3 acres 8.25 cents was available for which the vendor has not executed the sale deed and therefore, to enforce the contract, he has filed the suit purely on the basis of the sale agreement. Deva Aasirvatham filed written statement. The paragraphs-7 to 10 of the written statement, read as follows:
7. It is true one acre and 84 cents are kept for the future development. So, the defendant cannot execute a sale deed in favour of the plaintiff
8. Even though, this is a lawful claim of the defendant of his own properties he is prepared to give the defendant a sum of Rs. 7602/- which the plaintiff is claiming and the defendant is willing to deposit it in Court, whenever the Court orders it.
9. The defendant is also willing to deposit the vale of the 2nd schedule property which is Rs. 7,398/-. The plaintiff has fixed the valuation of the 2nd schedule property as Rs. 7,398/- and (torn) affixed the court fee to its value.
10. So, altogether the defendant is coming forward to deposit the sum of Rs. 7602, to the plaintiff by way of damages and also the sum of Rs. 7,398/- the value of the 2nd schedule property. The defendant undertakes to deposit the sum of Rs. 15,000/- (Rs. 760 - 7398)into court, which will adequately satisfy the claim of the plaintiff.
13. However, the vendor therein did not pursue the suit and the suit was decreed exparte.
14. The respondents claimed 1 acres 84 cents under a Will.However, both the courts below have concurrently found that the Will was not proved and the respondents have no right over the property. The 3rd respondent had executed a sale in favour of 4th respondent, which was also found invalid.
15. The first appellate court had found that the exparte decree is not valid on the following grounds:
1. When the suit agreement is for 26 acres, filing a suit for specific performance for 3 acres 8.25 cents is not maintainable
2. The appellant has admitted that the plots were sold at the rate of Rs. 100 per cent and the sale price was shared by himself and the vendor in the ratio of 65:35 and therefore, the suit property of 3 acres 8.25 cents ought to have been valued at Rs. 100 per cent.
3. Had it been valid properly the value would have been more than Rs. 30,000/- and the court which passed the exparte decree has no jurisdiction and therefore, the decree is a nullity.
16. It is well settled law a decree can be set aside only on the ground that it was obtained by fraud or collusion. Even an exparte decree is valid unless it is set aside in the manner known to law. It is also well settled that a decree passed by a Court having jurisdiction is a nullity.
17. The respondents have not pleaded or proved that the decree passed in O.S. No. 83/85 was obtained by fraud or collusion. The exparte decree was passed on 20.7.1989. On 10.5.1996 it is alleged that the judgment debtor namely Deva Aasirvatham had executed a Will in favour of the respondents and he died on 1.12.2000. The Probate was obtained on 11.3.2003.The present suit was filed on 15.12.2003 to set aside the decree dated 20.7.1989. As stated earlier, the decree was challenged only on the ground that the appellants have filed a suit for specific performance in the Munsif Court when the value of the suit is more than Rs. 30,000/-.
18. The valuation of the suit was not questioned by the defendant in the original suit. The first appellate Court had gone into the facts and merits of O.S. No. 83/85 and had come to the conclusion that the valuation of the suit is more than Rs. 30,000/-and therefore the court which passed the decree has no jurisdiction and therefore, it is a nullity.
19. The question of nullity on the ground without jurisdiction cannot be taken in the subsequent suit for the simple reason that the same plea was not taken before the Court which passed the decree.
20. In
10. It is not the plea of the judgment-debtors-appellants that the court which passed the decree did not have the jurisdiction to do so. It is also not their case that a ground for eviction of the tenants on the ground of default in payment of arrears of rent was not available to the landlords-respondents within the meaning of the Delhi and Ajmer Act or the successor Rajasthan Act. The only submission made is that before passing the decree the Court should have afforded the tenant an opportunity of depositing the rent in arrears, which was not done. Firstly, we find merit in the submission of the learned Counsel for the respondents that it was for the tenants to have invited the attention of the Court by making ana pplication in that regard so as to avail an opportunity of wiping out the effect of their default, which gave rise to cause of action to the respondents by depositing the rent during the pendency of the suit. That having not been done, the tenants-appellants cannot be heard to urge any infirmity in the decree. Secondly, accepting it as its face value, in the eyes of law, the challenge seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an "illegal decree", but that in itself would not amount to branding the decree as "without jurisdiction" of "a nullity". The plea which is sought to be urged in the execution proceedings was available to be raised by the tenants before the High Court in an appeal against the decree. Such a plea was not taken before the passing of the decree and cannot now be allowed to be urged during the execution proceedings. It is unfortunate that a decree of eviction passed in a suit commenced in the year 1956 and culminating into a final decree in the year 1986 is still starving for its execution.
21. In 2010 1 CTC 207 (ICICI Bank Limitd v. The Presiding Officer, DRT)a Division Bench of this Court has held as follows:
26. A perusal of the above judgments would show that whenever the plea of jurisdiction was available to the parties, such plea could only be raised at the earliest point of time in the very same proceedings. Only under those circumstances the issue of nullity of the proceedings was considered and upheld.
22. In
8. A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and no executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed in executable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings of by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.
23. Therefore, the first appellate Court is wrong in reversing the finding of the trial court on the ground that the court which passed the exparte decree in O.S. No. 83/85 was not having jurisdiction and therefore, the decree passed is nullity. Moreover, u/s 59 of the Limitation Act, the respondents ought to have filed the suit to set aside the decree and judgment within three years either from the date of decree or from the date of knowledge of passing of the decree. Therefore, filing a suit in 2003 is barred by limitation.
24. To sum up the suit filed by the respondents without pleading and proof that the decree was obtained either fraud or collusion is not maintainable. When the maintainability of the suit was not challenged by the defendant in the earlier suit the same plea cannot be taken in the subsequent suit and without filing an appeal a separate suit to set aside the decree passed in a suit for specific performance is not maintainable. The first appellate court is wrong in holding that the court which passed the decree had no jurisdiction and the first appellat court ought not to have gone into the merits of the case in the subsequent suit. The suit is also barred by limitation.
25. As far as the civil revision petition is concerned, the first appellate court which has decided the appeal in AS No. 222 of 2004 had proceeded in the same footing to set aside the decree passed in O.S. No. 83/85 in the application filed u/s 47 of the Code of Civil Procedure.
Section 47 of CPC reads as follows:
Section 47(1) All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, or discharged or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.
(2) (3) omitted
26. Sub-section (1) of Section 47 makes it clear that all questions arising between the parties to the suit in which the decree was passed must relate to the execution, discharge or satisfaction of the decree. Objecting the decree on the ground that the decree is not executable cannot be raised u/s 47 of CPC before the executing Court. Executing Court cannot go beyond the decree and the executing court cannot entertain that the decree was passed without jurisdiction. As stated earlier a plea which ought to have been taken before passing that decree cannot be allowed to be raised during exeution proceedings. In
10. ...It is an established proposition of law that the executing Court must execute the decree as it stands and it cannot go into the correctness or validity of the decree except when the decree is a nullity. Since the decree is of a Court with jurisdiction, the executing Court is bound to execute the decree as it stands.
27. When the decree is made by a Court which had no inherent jurisdiction to make it, objections to its validity may be raised in an execution proceedings only if the objection appears on the face of the records. Where the objection as to the jurisdiction of the Court requires, that the question of jurisdiction ought to have raised before the court which passed the decree but have not been raised, the same cannot be raised in the executing court.
28. Therefore, for the reasons stated above, the substantial questions have been answered in favour of the appellant and the order passed in the CMA No. 56 of 2004 is liable to be set aside.In the result, both the second appeal and the civil revision petition stand allowed. No costs.
