@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashChallenging the order dated 22.2.2010 passed in E.A. Sr. No. 4128 of 2010 in E.P. No. 468 of 2009, on the file of the learned X Assistant City Civil Judge, Chennai this Civil Revision Petition has been filed.
2. As per the impugned order, it is seen that an unnumbered E.A. in Sr. No. 4128 of 2010 was filed by the petitioner/judgment debtor No. 1 u/s 47 of CPC seeking to hold that the decree passed in O.S. No. 8449 of 1996 dated 10.01.2003 is null and void and inexecutable. It is seen that an execution application was filed in E.P. No. 468 of 2008 on the ground that the suit itself was barred on account of non-joinder of necessary parties, among other grounds raised therein. As per the impugned order, the petitioner/judgment debtor No. 1 had entered appearance in the execution petition in E.P. No. 468 of 2009, however, she has not filed any counter and also file petition to set aside the ex-parte order passed in the E.P. On 14.10.2001, subsequently delivery of possession was ordered on 29.01.2010. The petitioner/judgment debtor No. I has not taken any steps to set aside the ex-parte order but filed the execution application u/s 47 of CPC , after the order for delivery of possession was passed in the main execution petition. The Court below took a view that the petition filed in E.A. Sr. No. 4128 of 2010 was not legally maintainable. It is not in dispute that the petitioner herein had filed three more applications in the Execution Petition viz., (1) to set aside the ex-parte order dated 14.10.2009 (2) to stay all further proceedings, (3) to dismiss the execution petition and the same were rejected. The Court below has found that the application seeking relief to set aside the ex-parte order dated 14.10.2009 was not maintainable, as the same was filed after the period of limitation. The execution court has further held that the petitioner herein has not explained as to how the petitioner, being a judgment debtor who had failed to contest the main execution petition and was set ex-parte could make a claim in the application filed u/s 47 CPC . The E.P. Court held that the application filed u/s 47 of CPC was not maintainable and on that ground the court below rejected the unnumbered applications filed by the petitioner herein.
3. Mr. Sathish Parasaran, learned Counsel appearing for the petitioner submitted that the decree dated 10.01.2003 passed in O.S. No. 8449 of 1996 confirmed by the judgment and decree dated 31.08.2007 in A.S. No. 264 of 2003 by the First Appellate Court and also by this Court, in S.A. No. 1034 of 2009 by judgment dated 30.11.2009, is non-executable. According to him, the Court below could have allowed the execution application and dismissed the execution petition. Learned Counsel appearing for the petitioner further submits that the proceedings u/s 47 CPC is independent and the court below has to dispose it only on merits. In support of his contention learned Counsel also relied on the following decisions:
4. In the decision in
The doctrine of merger is based on the principles of propriety in the hierarchy of the justice-delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time.
5. Mr. R. Thiagaraj, learned Counsel appearing for the respondent submits that the aforesaid decision is not applicable to the facts and circumstances of this case as it cannot be said that there is more than one operative decree governing the same subject matter.
6. It is seen that the respondent herein had filed a suit in O.S. No. 8449 of 1996 and after contest, the suit was decreed for delivery of possession and the interlocutory application filed in I.A. No. 16791 of 1999, u/s 9 of the City Tenants and Protection Act, 1945 by the petitioner herein was also dismissed. Aggrieved by which, appeal in A.S. No. 264 of 2003 and CMA 38 of 2006 were filed by the petitioner herein, and the Appellate Court, confirming the judgment and decree passed in O.S. No. 8449 of 1996 dated 10.01.2003 dismissed the appeal. The CMA was also dismissed. The appellant herein filed the second appeal in S.A. No. 1034 of 2009 and this Court, by judgment and decree dated 30.11.2009 having confirmed the judgment and decree passed by the court below the second appeal preferred by the petitioner herein was dismissed.
7. It is not in dispute that the decree passed in the suit in O.S. No. 8449 of 1996 and the order passed in the petition filed u/s 9 of the City Tenants Protection Act, 1945, become final. Pursuant to the decree, Execution petition was filed and in the execution petition admittedly, the petitioner/judgment debtor No. after service of notice, was set ex-parte. Order 21 Rule 106 (3) of CPC reads as follows:
An application under Sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex-parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order.
It is seen that the petitioner/judgment debtor entered appearance in the E.P. but subsequently remained absent. Therefore, she cannot make a plea that she had no knowledge about the date of hearing of the execution petition. As contended by the learned Counsel appearing for the respondent, the said petition was not filed as contemplated under Order 21 Rule 106(3) of CPC within time. Though the time prescribed under Sub-rule (3) is only 30 days, the petitioner herein had filed the application nearly after 60 days, hence the same is not legally sustainable.
8. Learned Counsel appearing for the petitioner relied on the decision reported in 1996(1) L.W.689 and
9. In the decision in
If the civil court''s jurisdiction was ousted in terms of the provisions of Section 22 of the Act, any judgment rendered by it would be coram non judice. It is a well-settled principle of law that a judgment and decree passed by a court or tribunal lacking inherent jurisdiction would be a nullity. In Kiran Singh v. Chaman Paswan this Court held (AI Rp.342, para 6) "6... It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.
10. It is a settled preposition of law that a judgment and decree passed by a court or tribunal having inherent jurisdiction could be a nullity, if the court''s jurisdiction was ousted in terms of the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, and any judgment rendered by it would be construed as coram non judice.
11. Per contra, learned Counsel appearing for the respondent relied on the decision reported in
12. The judgment and decree passed in O.S. No. 8449 of 1996 dated 10.01.2003 was confirmed by the First Appellate Court as well as by this Court in the second appeal and the petition filed u/s 9 of the City Tenants Protection Act, by the petitioner herein was dismissed and the CMA preferred by the petitioner herein was also dismissed and the same was also reached its finality and therefore the petitioner cannot raise an issue that the judgment and decree was passed without jurisdiction. The Doctrine coram non judice has no relevance in this civil Revision petition, as there is a clear finding that the court has jurisdiction to decide the suit and that was finally decided in the second appeal by this Court. On the aforesaid facts and circumstances, the petitioner cannot challenge the said judgment and decree before the executing court namely, City Civil Court, Chennai. Admittedly, the petitioner herein was given proper notice in the E.P. but she remained absent for the reasons best known to her and filed petition to set aside the ex-parte order against the respondent under Order 21 Rule 106(3) which is not legally sustainable. In the unnumbered E.A. filed u/s 47 CPC , the petitioner/judgment debtor No. 1 has sought an order that the decree dated 10.01.2009 passed by the Assistant Judge, City Civil Court, Chennai in O.S. No. 8449 of 1996 on his file, as affirmed by the decree dated 30.11.2009 by this Court (High Court) in A.S. No. 1034 of 2009 are null and void and non-executable and consequential order to dismiss the E.P. No. 468 of 2008 in O.S. No. 8449 of 1996 on the file of the executing court, Assistant City Civil Court, Chennai.
13. The petitioner herein was a party to the decre and the points raised by the petitioner herein were already decided by the trial court, appellate court and also by this Court in the second appeal and therefore, the petitioner who was a party to the proceeding cannot challenge the decree, before the E.P. Court by saying that the decree was passed without jurisdiction. I could find no error or infirmity in the impugned order passed by the Court below, so as to warrant any interference by this Court, hence the Civil Revision Petition is liable to the dismissed.
14. In the result, this civil revision petition is dismissed. No order as to costs.
