Adapa Gopala Rao vs Bandaru Kabbaiah and another

Hon''ble Mr. M. Ramachandra Raju

These three civil revision petitions arise out of execution proceedings taken in E.P. No.8 of 1973 in O.S. 43/72 on the file of the Dist. Court, Khamman. The petitioner is the same in all the civil revision, petitions. He is the 2nd defendant in the suit against whom and another, viz., the 1st defendant in the suit, a decree was passed in the suit for a sum of over Rs. 40,000/-. In execution of the said decree the respondent herein viz., the decree-holder filed E.P. No. 8/73 for purposes of arrest of both the judgment debtors including the petitioner herein. In those proceedings, the petitioner filed E.A. No. 17/73, out of which C.R.P. No. 417 of 1974 has arisen, contending that the decree passed by the Dist. Court in O.S. 43 of 1972 is a nullity. Therefore it is incapable of execution alleging that the defendants in the suit, viz, the petitioner and the 1st defendant were admittedly residing in a village called Mandapally, Kothagudem Taluk, Khammam district which is in the agency area and the suit filed in the District Court could not have been filed validly against them, the agency courts only having jurisdiction against them as provided under the Andhra Pradesh Agency Rules. The suit was filed in the Dist. Court, Khammam on the allegation that though the defendants were residing in the agency area, the suit promissory note on the basis of which the suit was filed was executed at a place called Wyra which is within the territorial jurisdiction of the Dist. Court, Khammam and the cause of action for the suit had arisen within the jurisdiction of the Dist. Court, Khammam, The petitioner filed E.A. 20/73 out of which C.R.P No. 418 of 1972 has arisen for purposes of examining a witness to show that even the suit promissory note was executed only at the place in the agency area and not at Wyra, within the jurisdiction of the Dist. Court. E. A. No. 29 of 1972 out of which C.R.P. No. 419 of 1974 has arisen was filed by the petitioner to conduct an enquiry in E.A. No. 17 of 1973. Of course this application is unnecessery. Even without this application, E-A. No. 17/73 any way has to be enquired into. Accordingly the lower court rightly dismissed this application and straightaway even now it can be said that there are absolutely no merits in C.R.P. No. 419 of 1974 and nothing more need be said about this in this order except to dismiss the same. As regards E.A. No. 20/73 also there is not much to be said in favour of the petitioner. He filed that application in order to prove for the first time in execution proceedings that the cause of action for the suit also has arisen in the agency area and not within the jurisdiction of the Dist Court, Khammam. The executing court cannot go into that matter now. The executing court cannot go behind the decree What all can be urged and considered by the executing court if it appears on the face of the record is only the question whether the decree is a nullity and is therefore inexecutable. Therefore the lower court rightly dismissed E.A. No. 20/73.

The main question for consideration is with regard to the plea taken by the petitioner in E.A. No. 17/73 that the decree passed by the Dist. Court, Khammam is a nullity on the face of it and therefore incapable of execution. No doubt it is an admitted fact that the two defendants in the suit are residents of agency area and the suit could have been filed in the agency court on that ground. But the fact remains that the cause of action for the suit has arisen within the jurisdiction of the Dist. Court, Khammam, the suit promissory note having been executed within that court''s jurisdiction. Under these circumstances, it is for consideration whether the Dist. Court, Khammam could not have tried the suit at all and whether there was want of jurisdiction in trying the suit. The jurisdiction of a court may be inherent or territorial or pecuniary or personal. But it is only the lack of inherent jurisdiction that will render all acts of court null and void and any decree passed by it will be a nullity. Consent cannot give such a jurisdiction. Objection to want of such a jurisdiction cannot be waived. In the case of territorial, pecuniary or personal jurisdiction, the position is different. Objection to such jurisdiction if not raised at the proper time cannot be raised subsequently and the decree passed in such a case is not a nullity. On this principle the executing court cannot entertain any objection that the court which passed the decree could not have entertained the suit for want of territorial, pecuniary or personal jurisdiction. In the case of inherent jurisdiction, the lack of it goes to the root of the competence of the court to cry such a case and renders the decree a nullity. A decree which is a nullity is void and can be declared to be void by every court in which it is presented. The executing court, can therefore, entertain an objection that a decree is a nullity and can refuse to execute the decree. Only in such a case there is really no going behind the decree for there is really no decree at all Decrees are nullities for instance when they are passed against dead persons and the court passing the decrees have no jurisdiction to try suits of that nature.

Sri N. Subba Reddy, the learned counsel for the petitioner has argued that the Dist. Court, Khammam had inherent want of jurisdiction in trying the suit as the two defendants were living in agency area and according to the Andhra Pradesh Agency Rules, the Agency Court alone has jurisdiction to try their suit and as separate procedure is laid down for the agency courts, the CPC has no application to the agency courts. Therefore with regard to suits triable by agency courts, the ordinary civil courts cannot have any jurisdiction and want of jurisdiction is inherent. It is true that the CPC as such is not applicable to agency courts. Only those provisions of the CPC which were adapted by the Agency Rules are applicable. I fail to understand, how by reason of the fact that the CPC as such has no application to the Agency courts with regard to suits that can be tried by agency courts the ordinary civil courts outside the agency area will have want of inherent jurisdiction. With regard to this matter, the relevant rule in the agency rules is Rule 10. It is provided therein that the agency courts mentioned in the rules shall receive, try and determine suits, as declared to be cognizable by those courts, if in the case of suits for land or other immovable property such land or property or any portion of such land or property is situate within the limits to which their respective jurisdictions extend and all other cases if the causes of action wholly or in part shall have arisen or defendants or any one of the defendants at the time of commencement of the suit dwells or personally works for gain within such limits. So far as this provision goes, it is only an enabling provision, viz., the Agency court can try those suits where the defendants or any one of them at the time of filing of the suit resides or personally works for gain within their limits No doubt the defendant in the suit viz. the petitioner and the 1st defendant in the suit were living at the commencement of the suit in the agency area. Therefore if respondent so wanted, he could have validly filed the suit against them in the agency court also. But, as already mentioned above, unless there is prohibition, either express or implied, the District court at Khammam also had Jurisdiction to try the suit because the cause of action had arisen within its jurisdiction, the suit promissory note having been executed there and the suit is only a money suit which the Dist. court is competent to try suits of that nature. The question for consideration is whether there is any such prohibition for trying the suit by the Dist. court, Khammam inspite of the fact that the cause of action for the suit had arisen within its jurisdiction to try suits of that nature. Sri Subba Reddy for his contention that it is only the agency court that could that enertain the suit and not Dist court Khammam has placed reliance upon Kruthivent Perraju v. Sri Raja Naraparaju Mirza Seetha Ramachandra Raju Garu and others AIR 1923 Mad. 114. Therein a case of a mortage with regard to properties within the jurisdiction of Sub-Court, Kakinada and properties situated within the agency area, a mortgage decree for sale of the property was passed by the Sub-Court, Kakinada. When the decree was sent to the Agency court for execution regarding the properties within its jurisdiction, the agency court refused to execute the decree and the Madras High Court approved of it by holding that the decree on its very face is invalid relating to lands in the agency tracts and the agency court is right in declining to execute such a decree. That may be so. The present Agency Rules came into force on 23-7-1924 i.e., subsequent to the Madras decision referred to above. These rules were made applicable to Andhra Pradesh by Regulation No. II of 1963 dated 1-12-1963. It is provided in the present rules under rules 35 and 36, for execution of decrees passed by courts in India situated outside the agency tracts by the courts in the agency tracts and vice versa. Therefore if the decree passed by the Dist. court, Khammam is not a nullity there is no difficulty in executing the same for arrest of the judgment-debtors even if they are living in the agency area. Under rule 30 of the Agency rules the provisions of Ss. 36 to 43 and 48, rules 37 to 40 of Or. 21 C.P.C. were also made applicable to the agency courts. Therefore there is no difficulty of execution personally against the judgment-debtors by arrest with regard to decrees passed by courts outside the agency area when the judgment-debtors resides in the agency area because as provided under the rules mentioned above, the decree can be transferred from the courts outside the agency area to the court within the agency area for execution and vice versa.

But the real point for consideration is whether as contended by Sri Subba Reddy, the decree passed by the Dist Court, Khammam is a nullity. As already mentioned above, the cause of action for the suit had arisen within its jurisdiction. Therefore, normally that court will have jurisdiction to entertain and try the suit. It is a well laid proposition of law that as provided under Sec. 9 of the CPC a Civil Court can entertain a suit of a civil nature except the suit of which its cognizance is expressly or impliedly barred and it is for the party to oust the jurisdiction of a civil court to establish his contention. It is also equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed. This principle has been reiterated in Abdul Waheed Khan Vs. Bhawani and Others, by the Supreme Court, There is nothing in the agency rules from which it can be said that with regard to suits which can be tried by courts in the agency area, the jurisdiction of the courts outside the agency area is ousted. Besides there being no such express provision like that, I do not also see any provision in the agency rules from which such a provision can be implied Whenever such a provision is laid down in any law, it was so laid down specifically and expressly. For instance in the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, under S. 5 with regard to attachment and sale of immovable property, it was specifically provided that no immovable property, situate in the agency tracts and owned by a member of the scheduled tribe shall be liable to be attached and sold in execution of a money decree against such member. Similarly in the Agency tracts Interest and Land Transfer Act, 1915 it is provided under Sec. 5 that notwithstanding the provision of any law to the contrary, every suit against a member of a hill tribe instituted after the commencement of that Act shall be instituted only in the courts of the agency tracts. It is further provided under Sec. 6 of the Act, that in execution of a money decree against a member of a hill tribe, no immovable property owned by him within the agency tract shall be liable to be attached and sold except as and if prescribed Therefore, if really the authorities wanted that the suits triable by courts in the agency tracts should not be tried by courts outside the agency tracts, should not be tried by courts outside the agency tracts, it would have been so provided expressly and specially. As already mentioned above, there is no such prohibition. In the absence of any such prohibition, in my opinion, it is futile to argue that the Dist. Court, Khammam had no jurisdiction to try the suit when the cause of action for the suit had arisen within its jurisdiction. Therefore the lower court has rightly negatived the contention of the petitioner that it had no jurisdiction to try the suit and therefore the decree was a nullity and is incapable of execution. Therefore, there are no merits in any of the three civil revision petitions and they are dismissed with costs. Advocate''s fee one set.