9911796707
TMI Blog2001 (7) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... ege on 8.1.1977 which was subsequently approved by the ad hoc Governing Body. After constitution of the regular Governing Body, defendant No.2 passed an order terminating the services of plaintiff in contravention of Statutes of Bihar University which necessitated filing of the present suit. In the said suit, the Governing Body of the College in question which was defendant No. 1 entered appearance but no written statement was filed and the defendant absented itself and the suit was fixed for exparte hearing which was decreed exparte and the defendants were permanently restrained from giving effect to the order of termination. As the judgment debtors refused to comply the directions contained in the decree, the appellant levied execution. In the said execution case, an objection under Section 47 of the Code was filed on behalf of Principal of the College as well as the Bihar University objecting to the executability of the decree on grounds, inter alia, that during the pendency of the suit on Ist October, 1980, the College in question became the constituent unit of the Bihar University and the erstwhile Governing Body ceased to exist but the University was not impleaded party in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout bringing his legal representatives on the record, which is a nullity. Thus, in view of the rival submissions, the following questions arise for our consideration:- 1. Whether in a case of devolution of interest during the pendency of a suit as postulated under Order 22 Rule 10 of the Code, decree passed against the predecessor-in-interest without bringing the successor-in-interest on the record would make the decree nullity and the same can be executed against such a person who was not impleaded as party? 2. Whether application under Order 22 Rule 10 seeking leave of the Court is required under law to be filed by that person alone upon whom interest has devolved during the pendency of the suit and by nobody else? In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rules 3 and 4 whereof prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the Court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles, the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by their Lordships of the Judicial Committee in Moti Lal v. Karab-ud-Din [1898] 25 Cal.179, he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath v. Rookea Begum [1851-59] 7 M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e execution stage which would obviously mean by taking an objection under Section 47 of the Code. Venkatarama Ayyar, J. speaking for himself and on behalf of B.K.Mukherjea, Vivian Bose, Ghulam Hasan, JJ., observed at page 352 thus: It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, 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. In the case of Ittyavira Mathai v. Varkey Varkey and another AIR 1964 S.C.907, the question which fell for consideration before this Court was if a Court, having jurisdiction over the parties to the suit and subject matter thereof passes a decree in a suit which was barred by time, such a decree would come within the realm of nullity and the Court answered the question in the negative holding that such a decree cannot be treated to be nullity but at the highest be treated to be an illegal decree. While laying down the law, the Court stated at page 910 thus:- If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In the case of Everest Coal Company (P) Ltd. v. State of Bihar and others, (1978) 1 SCC 12, this Court held that leave for suing the receiver can be granted even after filing of the suit and held that the infirmity of not obtaining the leave does not bear upon the jurisdiction of the trial court or the cause of action but it is peripheral. It also held that if a suit prosecuted without such leave culminates in a decree, the same is liable to be set aside. These observations do not mean that the decree is nullity. On the other hand, the observation of the Court at page 15 that any litigative disturbance of the Courts possession without its permission amounts to contempt of its authority; and the wages of contempt of Court in this jurisdiction may well be voidability of the whole proceeding would lend support to the view and such decree is voidable but not void. In the case of Haji Sk.Subhan v. Madhorao, AIR 1962 S.C.1230, the question which fell for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If the former, it must follow that the council is still in office and that, if any councillor, ratepayer or other person having a legitimate interest in the conduct of the council likes to take the point, they are entitled to ask the court to declare that the council is still the duly elected council with all the powers and duties conferred on it by the Municipal Ordinance. In the case of In re McC. (A minor) [ 1985 ] 1 Appeal Cases 528, the House of Lords followed the dictum of Lord Coke in the Marshalsea Case quoting a passage from the said judgment which was rendered in 1613 where it was laid down that where the whole proceeding is coram non judice which means void ab initio, the action will lie without any regard to the precept or process. The Court laid down at page 536 thus:- Consider two extremes of a very wide spectrum. Jurisdiction meant one thing to Lord Coke in 1613 when he said in the Marshalsea Case (1613) 10 Co. Rep.68b, at p.76a: when a court has jurisdiction of the cause, and, proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the court who executes the precept or process of the court, no action lies against them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would not be automatically void. Something would have to be done to avoid it. There would have to be an application to the High Court for certiorari to quash it. This question was examined by Court of Appeal in the case of R. v. Paddington Valuation Officer and another, Exparte Peachey Property Corporation, Ltd. [1965] 2 All England Law Reports 836 where the valuation list was challenged on the ground that the same was void altogether. On these facts, Lord Denning, M.R. laid down the law observing at page 841 thus:- It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. In the present case the valuation list is not, and never has been, a nullity. At most the first respondentacting within his jurisdiction-exercised that jurisdiction erroneously. That makes the list voidable and not void. It remains good until it is set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable. Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers of Court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. A first appellate Court is not only e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er its passing. In the case on hand, the decree was passed against the governing body of the College which was defendant without seeking leave of the Court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it . Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law. Now we proceed to consider the second question posed, but before doing so, for better appreciation of the point involved, it would be appropriate to refer to the provisions of Order 22 Rule 10 of the Code which runs thus:- 10. Procedure in case of assignment before final order in suit.(1) In other cases of an assignment, creation or devolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adversary. Any other party, in our view, may also seek leave as, for example, where plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in the Mitakshara Coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute the suit, but if there is any other co-sharer who is supporting the plaintiff, may have a cause of action to continue with the suit by getting himself transposed to the category of plaintiff as it is well settled that in a partition suit every defendant is plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission of learned counsel appearing on behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested. Thus, in view of the foregoing discussions, we have no difficulty in holding that the High Court was not justified in allowing objection under Section 47 of the Code. In the result, the appeal is allowed, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
