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Judgment
(PER : NANDESH S. DESHPANDE, J.)
Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.
The present petition challenges order passed in RD No. 143 of 2020 below Exhibit 43 by the Civil Judge, Senior Division, Nagpur, on 30.07.2025, and also prays for allowing the application.
The Facts as can be seen from the petition are as under :
The Respondent Nos. 1 and 2 filed a civil suit for partition and separate possession, and the petitioners herein were the original defendants. The said suit was bearing R.C.S. No. 3313 of 2012 (Old R.C.S. No. 924 of 2010). After the trial which ensued, the Civil Judge, Junior Division, passed a preliminary decree on 19.08.2013, proceeding ex parte against the present petitioners.
On 28.11.2013, the respondents filed proceedings for issuing a final decree in view of the preliminary decree stated supra. On 02.01.2020, the trial Court allowed the final decree proceedings bearing No. 34 of 2013.
On 07.02.2020, the respondents filed an execution application bearing R.D. No. 143 of 2020 for execution of the final decree No. 34 of 2013 before the Civil Judge, Junior Division, Nagpur. The petitioners herein filed an application at Exhibit 43 in R.D. No. 143 of 2020, to which the present respondents filed a reply.
The Executing Court rejected the application at Exhibit 43 vide order dated 30.07.2025. The said order is impugned in the present petition.
I have heard Mr. S. S. Voditel, learned Advocate for the petitioners, as also Mr. Anand Jaiswal, learned Senior Advocate for the respondents, i/b Mr. Prakash D. Randive.
It is the primary contention of Mr. S. S. Voditel, learned counsel for the petitioners, that the preliminary decree as also the final decree is vitiated for non-joinder of a necessary party, i.e., late Mr. Rupak Kumar, s/o Rishi Bhushan Sur, who was alive on the date of filing of the civil suit. He would further submit that the trial Court has not considered the entire prayer clause in Exhibit 43 and rejected the same mechanically. He would also submit that the presence of all co-sharers is a condition precedent and, therefore, the trial Court ought to have allowed the said application. He would place reliance on judgments of the Hon'ble Supreme Court in Kenchegowda (Since Deceased) By Legal Representatives Vs. Siddhegowda Alias Motegowda, reported in (1994) 4 SCC 294, and in the case of Kanakarathanammal Vs. Loganatha Mudaliar And Another, reported in AIR 1965 Supreme Court 271.
Per contra, Mr. Anand Jaiswal, learned Senior Advocate appearing for the respondent, would oppose the contentions. He would submit that admittedly, the present petitioners were proceeded ex parte, inasmuch as they did not choose to appear before the trial Court when the suit proceeded and was decided. He would also submit that admittedly, the present petitioners had not chosen to challenge the said decree passed in the partition suit. He would further submit that a perusal of the impugned order would reveal that the Executing Court had considered all these aspects, which are borne out of the record, and has rightly rejected the application. He would also submit that it is a settled principle of law that the Executing Court cannot go beyond the decree and is not supposed to reopen it. He would place reliance on a judgment of the Hon'ble Apex Court in the case of Maurice W. Innis Vs. Lily Kazrooni @ Lily Arif Shaikh, reported in 2026 SCC OnLine SC 554.
In the backdrop of these facts, rival contentions fall for my consideration.
The fact that a decree for partition, initially a preliminary decree and then a final decree, was passed is not in dispute. It is also not in dispute that the said final decree was put into execution by filing a regular darkhast, as stated supra. In the light of these admitted facts, the objection at Exhibit 43 needs to be perused. In the said objection, it is stated that late Rupak Kumar, who was one of the legal representatives, was required to be arrayed as a defendant in the said civil suit and the suit property ought not to have been divided in his presence. Furthermore, the objection in detail avers about the legal representatives of the original owner, late Smt. Mahamayadevi Sashindra Chandra Dhar. Be that as it may, the principal contention is that, for want of all co-sharers, the decree cannot withstand the scrutiny of law and is not liable to be executed. It further prays for declaring that the preliminary decree and the final decree were obtained by fraud and also prays for restoration of the regular civil suit.
If the impugned order in the present petition is perused, the Executing Court has taken into consideration all these aspects. In paragraphs 14 and 15 thereof, it has recorded that, admittedly, the person who is sought to be added by the present petitioners has not filed any application for joining as a party to the execution proceedings. It has, therefore, recorded a finding that such an application at the behest of the petitioners is not maintainable. It has further recorded a finding that the fact that the present petitioners were proceeded ex parte, had suffered a decree and had not chosen to challenge the same is also not in dispute. On this premise, the Executing Court has proceeded to reject the application, which was in the nature of an objection.
After going through the impugned order and in the backdrop of the facts, I am of the considered opinion that there is no perversity in the order of the Executing Court. It is a settled principle of law that the Executing Court cannot go beyond the decree, which finds a reference in the recent judgment in the case of Maurice W. Innis Vs. Lily Kazrooni @ Lily Arif Shaikh, as cited by the learned counsel for the petitioners. Paragraphs 25 and 26 are reproduced for the sake of brevity.
“25.In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, it has been held as under:—
“6.A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.”
26.The aforesaid view has been reiterated and fortified by the Supreme Court in Sunder Dass v. Ram Prakash. The relevant portion is reproduced hereinbelow:—
“3.Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan [(1954) 1 SCC 710 : AIR 1954 SC 340 and Seth Hiralal Patni v. Sri Kali Nath [1961 SCC OnLine SC 42 : AIR 1962 SC 199]. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent.”
If the order of the Executing Court is examined on the touchstone of this settled principle, I hardly find any perversity in the impugned order.
The citations which are pressed into service by the learned counsel for the petitioners, and more particularly the case of Kenchegowda (Since Deceased) By Legal Representatives Vs. Siddhegowda Alias Motegowda, referred to supra, are distinguishable, as the said case arose in an entirely different context. In the said matter, the Hon'ble Apex Court was dealing with proceedings arising out of an appeal and not execution proceedings, as is in the present case. As far as the judgment in Kanakarathanammal Vs. Loganatha Mudaliar And Another, referred to supra is concerned, it was also on a totally different set of facts. In the said case the Hon’ble Apex Court was also dealing with the statutory appeal and not execution proceedings. In the judgment of this Court in Second Appeal No. 495/2024 also, the Court was dealing with an appeal under Section 100 of CPC same is the case in the judgment reported in 2004(1) SCC 317 in the case of Khetrabasi Vs. Ajaya Kumar and Others.
The context of the present case is entirely different, inasmuch as a final decree, which has attained finality for want of challenge, is sought to be nullified by the present petitioners on a very fragile ground that certain persons/alleged co-sharers, which, according to the petitioners, were necessary parties, were not arrayed as defendants in the suit. In my considered opinion, if such a course is to be adopted, then the litigation would be endless. Moreover, such a scope of enquiry is not contemplated either under Section 47 or under the relevant provisions of Order XXI of the Code of Civil Procedure, 1908. The petition is nothing but an attempt to nullify or frustrate the decree which has already attained finality. The petition lacks merits and is liable to be rejected.
The petition is rejected.
Rule is discharged.
LATER ON:-
After the pronouncement of judgment, Mr. S. S. Voditel, learned counsel for the petitioners, prays for extension of the interim order passed by this Court on 10.09.2025.
I have perused the said interim order. By way of the said interim order, the further proceedings in Regular Darkhast No. 143 of 2020 have been stayed. The said request is opposed by the learned counsel appearing for the respondents. However, since there was already an interim order, it would be fair to extend the said interim order for a further period of four weeks to enable the petitioners to challenge the judgment before the Hon'ble Apex Court or any other forum in accordance with law.
In that view of the matter, the interim order dated 10.09.2025 is extended for a further period of four weeks from today.
However, it is made clear that after expiry of the said four weeks, the said interim order would automatically cease to operate.