Bhaskar Bhattacharya, J.@mdashthis revisional application u/s 115 of the CPC is at the Instance of decree-holders in a Money Suit and is directed against order November 27, 1996 passed by the learned Judge. 9th Bench. City Civil Court, Calcutta in Misc. Case No. 363 of 1998 thereby allowing an application of the opposite party u/s 47 of the Code of Civil Procedure. The present petitioners filed a Money Suit being Money Suit No. 789 of 1986 in the City Civil Court at Calcutta against Excon Pioneer Industries being represented by Special Officers appointed in a proceeding before the Original Side of this court. The defendant represented by the opposite parties entered appearance and filed written statement but ultimately did not contest the said suit.
2. The learned trial Judge by judgment and decree dated August 1, 1990 decreed the said suit ex parte
3. The present petitioners put the said decree into execution. In the said Execution Case, the opposite parties No. 3 and 4 filed an application u/s 47 of the CPC thereby praying dismissal of the said execution case on the ground that the decree having been passed against the defendant represented by Special Officers and no leave of the court appointing the Special Officers having been taken, the decree is not executable. The aforesaid opposite parties took a further ground that no notice u/s 80 of the CPC having been served upon the Special Officers, the decree was not executable also on that ground.
4. The learned Executing Court held that no notice u/s 80 of the CPC was required to be served upon the Special Officers. However, on the ground that no leave was taken to sue the Special Officers from the court appointing them, the learned Executing Court held that the decree obtained by the petitioner was not executable.
5. Being dissatisfied the decree-holders have come up in this revision.
6. Since the point involved in the instant revisional application is an important one and there is no direct authority of this Court on this exact point, this court requested Mr. Subhrakamal Mukherjee, learned advocate to assist the court as amicus curie.
7. Mr. Mukherjee, the learned advocate appearing as such amicus curie has submitted that a decree passed in a suit against a Receiver or a Special Officer without the leave of the court is illegal. Mr. Mukherjee submits that if any appeal is preferred against such a decree the appellate court is bound to set aside the said decree. However, Mr. Mukherjee contends that though the said decree is illegal the same cannot be said to be a nullity. Mr. Mukherjee contends that an Executing Court is bound to execute the decree unless the same is a nullity. Thus, according to Mr. Mukherjee the learned executing court acted illegally in refusing to execute the said decree. In support of such, contention Mr. Mukherjee has relied upon the following decisions:
1) Everest Coal Company Lid. vs. State of Bihar and Ors.. AIR 1977 SC 2304;
2) M/s. Aniban Chit Fund (P) Ltd. vs. Commissioner. Sanchaita Investments 1988 (1) CLJ I;
3) Md. Ghulam Chouse Khan vs. Anantha Rao Desmukh, AIR 1984 AP 150.
8. After hearing Mr. Mukherjee and also the learned advocates for the parties and after going through the materials on record I find substance in the contention of Mr. Mukherjee. The law is settled that an Executing Court can refuse to execute a decree as a nullity only if the court passing such decree had inherent lack of jurisdiction to entertain the suit. There is no doubt that any decree passed by a court against Receiver without the leave of the court appointing such Receiver is illegal. But the law is now also settled that such leave can be obtained from the court appointing Receiver even during the pendency of the suit.
9. Thus the defect in not taking leave of the court is a curable defect. A court is said to have inherent lack of jurisdiction if such defect of jurisdiction cannot be cured by any means. But if the defect is curable, such defect cannot be said to be inherent.
10. This court is quite conscious of the position of law that the court which appointed the Receiver can punish the party who started proceedings without leave for contempt. Such court can also restrain such party from prosecuting the proceedings by an order of injunction. Similarly a threatened proceedings can also restrained by the court that appointed the Receiver. Such court can even restrain a decree-holder from enforcing a decree obtained against a Receiver without its leave. But such order of restraint operates upon the party who has brought such action and not upon the court in which action is brought. It should further be brone in mind that even in a case where an action has been brought against a Receiver after obtaining leave, the ultimate decree obtained in such a suit cannot be executed without further leave of the court appointing the Receiver.
11. Therefore, it is for the petitioners herein to decide what actions they will take in view of the aforesaid laws relating to an action against a Receiver. But as indicated above, all the restrictions are upon the party proceeding with an action against a Receiver and not upon the court in Which action is brought. Thus, in the case in our hand the executing court refused to exercise jurisdiction vested in it by law by refusing of execute the decree by declaring the same as a nullity. The decree though an invalid one is not a nullity. Therefore, the order impugned is set aside and the Miscellaneous Case u/s 47 of the CPC is dismissed. The revisional application, thus, is allowed.
12. In the facts and circumstances of the case there will however no order as to costs. Before parting with the case, this court records its appreciation of the valuable assistance given by Mr. Mukherjee, appearing as amicus curie.
