* HIGH COURT OF DELHI : NEW DELHI
CRP No. 129/2010 & CM Nos. 12235-12236/2010
% Judgment reserved on: 19th July, 2010
Judgment delivered on: 22nd July, 2010
Sh. Ram Nath (Deceased)
Through his legal heirs.
1. Smt. Rani
W/o Sh. Roore and D/o Late Sh. Ram Nath.
2. Sh. Kalu
S/o Late Sh. Ram Nath.
3. Sh. Dana
S/o Late Sh. Ram Nath.
4. Smt. Soni.
D/o Late Sh. Ram Nath.
5. Smt. Kamli
D/o Late Sh. Ram Nath.
6. Smt. Lali
D/o Late Sh. Ram Nath.
7. Smt. Shanti
D/o Late Sh. Ram Nath.
8. Smt. Kokal (Deceased)
W/o Sh. Jagdish and D/o Late Sh. Ram Nath, Through her legal heirs.
a. Kumari Kamini @ Archana , Aged 14 years. b. Kumari Veena aged 12 years.
CRP No.129/2010 Page 1 of 11 c. Master Pradeep aged 9 years.
All minors represented through their ad-litem guardian and Next friend Sh. Kalu Ram S/o Late Sh. Ram Nath, being their maternal Uncle.
All R/o H. No. 7031, Mata Rameshwari,
Nehru Nagar, Sat Nagar,
Karol Bagh, New Delhi.
.Petitioners
Through: Mr.Madan Lal, Adv.
Versus
Smt. Laxmi Devi (Deceased)
Through her legal heirs.
1. Sh. Sohan Lal.
S/o Smt. Laxmi Devi (Plaintiff No. 2)
2. Sh. Ashok Kumar @ Suraj Mal (Plaintiff No. 3)
3. Smt. Geeta
W/o Sh. Hanumanji, D/o Smt. Laxmi Devi (Plaintiff No. 4)
4. Smt. Santosh Kumari
W/o Sh. Shiv Dayal, S/o Smt. Laxmi Devi (Plaintiff No. 5)
5. Sh. Babu Lal
S/o Smt. Laxmi Devi.
6. Smt. Kamli Devi
D/o Smt. Laxmi Devi.
All R/o 7031, Mata Rameshwari,
Nehru Nagar, New Delhi.
.Respondents
CRP No.129/2010 Page 2 of 11 Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
V.B.Gupta, J.
Present revision petition has been filed by the petitioners against
impugned order dated 28th May, 2010, vide which objections under Section
47 of Code of Civil Procedure (for short as Code) filed by the petitioners
were dismissed.
2. Brief facts of this case are that Smt. Laxmi Devi (since deceased)
and others, in 1971 filed an application under Order 33 Rule 1 of the Code,
seeking leave to sue as Forma Pauperis, against defendant Ram Nath (since
deceased).
3. Trial court, vide its order dated 17th July 1973, rejected that
application with costs of Rs.50. Smt. Laxmi Devi and others were directed
to deposit the requisite court fee by 17th August, 1973. Since, order dated
17th July, 1973, was not complied with, the trial court rejected the plaint
under Order 7 Rule 11 of the Code.
CRP No.129/2010 Page 3 of 11
4. Smt. Laxmi Devi and others without payment of costs of Rs.50/- to
the defendant in terms of order dated 17th July, 1973 filed a suit against Sh.
Ram Nath for recovery of possession and mesne profits, after payment of ad
valoram court fee. In that suit, Ram Nath was proceeded ex parte on 5th
February, 1979. Consequently, on 16th April, 1981, an ex parte decree was
passed.
5. Thereafter, Ram Nath-defendant filed an application under Order 9
Rule 13 of the Code for setting aside ex parte judgment and decree dated
16th April, 1981, but the same was rejected by the Court of Sh. Nand
Kishore, the then Sub Judge, Delhi, vide order dated 10th April, 1985.
6. Civil Revision petition filed against that order was allowed by
Additional District Judge and ex parte order was set aside.
7. During pendency of the suit, Sh. Ram Nath-defendant died and his
legal heirs were brought on record. Later on, that suit was decreed vide
judgment dated 23rd October, 1999, passed by Sh. L. S. Solanki, Sub Judge,
Delhi. No appeal was filed against the said judgment. In the meanwhile,
Smt. Laxmi Devi-plaintiff no.1 (of the original suit) also died and her legal
heirs were also brought on record.
8. Present petitioners who are legal heirs of Sh. Ram Nath-defendant,
filed objections under Section 47 of the Code, in the execution proceedings.
CRP No.129/2010 Page 4 of 11 Vide impugned order, objections of petitioners were dismissed. This is how
the matter has reached before this court.
9. It is contended by learned counsel for the petitioners that since plaint
of the original plaintiff was rejected under Order 7 Rule 11 of the Code and
plaintiff did not pay the costs of Rs.50 to the defendant in terms of order
dated 17th July, 1973, the decree obtained by respondents cannot be
sustained in the eyes of law and the Court which passed the decree has no
jurisdiction and thus the decree is null and void. In support of his
contentions, learned counsel cited Shiam Sunder Lal and others Vs. Mt.
Savitri Kunwar, Air 1935, Allahabad 723, in which it was observed that;
"The provisions of Order 33 Rule 15 of the CPC are mandatory and as much as the plaintiff had failed to pay the costs imposed by the Government or the opposite party the suit ought to have been dismissed."
10. As apparent from the record, deceased Ram Nath the predecessor in
interest of the petitioners, never contested the suit nor did he file any written
statement taking such plea which has been taken by the present petitioners
in their objections. Moreover, judgment dated 23rd October, 1999 of the
trial court was never challenged by the present petitioners. It is only during
the execution proceedings, petitioners have taken objections with regard to
non-payment of the costs.
CRP No.129/2010 Page 5 of 11
11. It is well settled that objections regarding the jurisdiction of the
Court must be taken by the party at the earliest possible opportunity. The
executing court cannot go behind the decree i.e. it cannot examine the
merits of the case or alter the relief of the case. Moreover, if no objection
has been taken at the earliest, the same cannot be allowed to be taken at a
subsequent stage.
12. In Hira Lal Vs. Kali Nath, AIR 1962, Supreme Court 199, it has
been observed that;
"The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin 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.
It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the
competence of a court to try a case.
Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like S.21 of the Code of Civil Procedure."
CRP No.129/2010 Page 6 of 11
13. Mere fact that costs of Rs.50/- was not paid, it cannot be said that the
Court which passed the decree lacks the jurisdiction to do so and the decree
is consequentially a nullity. Trial court considered this aspect in detail in its
impugned order and its relevant finding reads as under;
" I find no merit in this contention of the JD. Even assuming arguendo that cost was not paid by the plaintiff, it cannot be said that the court which passed the decree lacks the jurisdiction to do so and the decree is consequentially a nullity. There exists a difference between a decree passed by a court having no jurisdiction at all and between a decree passed by a court of competent jurisdiction, however, suffering from certain irregularity of procedure. A decree suffering from irregularity of procedure cannot be challenged before a executing court under the provisions of section 47 CPC wherein jurisdiction of executing court is limited. For this view reliance is placed upon (2004) 1 SCC
287. The objection regarding non-payment of cost is not such as would go to the root of a duly passed decree, thereby making it a nullity. It is pertinent to mention here that
although the JD were very much a party to the suit upon which this decree was passed,
however, at no stage, did they take any
objection in their written statement that costs were not paid by the plaintiff and therefore the suit ought to be rejected. Thus once the plaintiff after a protracted trial have secured a decree in their favour, it does not lie for the JD to now say that a decree passed by a court of competent jurisdiction, after analysing the merits of the suit, cannot be executed because costs were not paid. The costs that were to be paid to the defendant at best gave the defendant a right to press for the pre-payment of this cost,
CRP No.129/2010 Page 7 of 11 however, once the defendants have chosen to sleep over their rights it shall be a travisity of justice to now allow the execution of the decree to fail on this ground.
In support of his submission, at the time of arguments, counsel for the plaintiff has relied upon AIR 1935 Allahabad 723. In this judgment, the Honble High Court has held that the pre-payment of cost imposed under Order 33 rule 15 CPC is a pre-requisite to the institution of a suit. However, it cannot be said that this judgment shall be applicable to the present objections which have been filed u/s 47 CPC. This judgment has clearly laid down that the plaintiff ought to have paid the relevant costs, however, the judgment has no where held, nor the judgment can be construed as providing that in a situation where the
defendant never raised this objection at the time of trial, the JD can do so u/s 47 CPC. The proceedings in a trial and those u/s 47 CPC are different in nature and governed by different procedures.
Further, the counsel for the JD has relied upon AIR 1954 SC 340. While laying down an important provision of law that a decree passed by a court without jurisdiction is a nullity and can be challenged whenever and wherever it is ought to be enforced, this judgment has no bearing upon the present objections. This is so as it cannot be said that the court which passed the present decree lacked the jurisdiction to pass this decree and therefore the decree is a nullity. In view of the above said discussion, the objection u/s 47 CPC stands dismissed."
14. The suit was filed in the trial court about forty years ago and the
same was decreed in 1999. Now in execution proceedings, petitioners have
CRP No.129/2010 Page 8 of 11 come up with a new story of non-payment of costs, which defence they
never took for more than thirty years. Further, decision of trial court was
never challenged by the petitioners and now suddenly they have raised the
question of the jurisdiction. It is well settled that a person who sleeps over
his right cannot ask for the same at the later stage.
15. In Halsburys Law of England, (4th edn), Reissue, Vol 10, Para 317,
it is stated;
"Where the court has jurisdiction over the particular subject matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case, or a defendant by entering an appearance without protest, or no taking steps in the proceedings, may waive his right to object to the court take cognizance of the proceedings."
16. Thus, it can be concluded that petitioners never raised any objection
during the trial of the court and thus submitted to the jurisdiction of the
court. Case law cited by learned counsel for petitioners is not at all
applicable to the facts of the present case.
17. Present objections filed by petitioners are most bogus and frivolous
one. Same have been filed just to delay the execution of decree which was
passed, as far as back in the year 1999.
CRP No.129/2010 Page 9 of 11
18. It is well settled that frivolous litigation clogs the wheels of justice
making it difficult for courts to provide easy and speedy justice to genuine
litigants. It has also been observed in large number of cases that meritless
litigation should be dealt with heavy hands. Any litigant who indulges in mindless
litigation and unnecessarily waste the precious time of the Courts should not be
spared. He must pay heavy costs for wasting time of the Court.
19. Here in the present case, due to frivolous objections filed by the
petitioners, the respondents have been denied the fruits of decree which was
passed in the year 1999. Admittedly, judgment and decree dated 23rd October,
1999, was never challenged in any Court by the present petitioners. The present
revision petition is thus nothing but is gross abuse of the process of law . A strong
message is required to sent to those litigants who are in the habit of filing bogus
and frivolous objections in the execution proceedings and thus deprive the decree
holders, the fruits of decree passed in their favour. Petitioner herein, have left no
stone unturned to deprive the fruits of decree to the decree holders in the suit filed
by them in the year 1971.
20. Hence, present petition being most bogus and frivolous one and having no
legal force is hereby dismissed with costs of Rs.30,000/- (Rs. Thirty Thousand).
21. Petitioners are directed to deposit the costs with Registrar General of
this Court, within four weeks and place its receipt before the trial /executing
court, forthwith thereafter, failing which the trial /executing court, shall
recover the same in accordance with law.
CRP No.129/2010 Page 10 of 11
22. Copy of this order be sent to the trial court.
CM NOs. 12335-12336 of 2010
23. Dismissed.
22nd July, 2010 V.B.GUPTA, J. ab
CRP No.129/2010 Page 11 of 11
http://lobis.nic.in/dhc/VBG/judgement/22-07-2010/VBG22072010CMM1292010.pdf
No comments:
Post a Comment