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Judgment
P. Shanmugam, J.—Petitioners are Respondents 6, 12 and 13 before the Executing court in E.P. No. 52/96. The only contention raised by the Petitioners is that the decree is not executable since the High Court which passed a decree has no jurisdiction. The executing court refused to accept the contention and ordered execution. The C.R.P. is against this judgment.
From the facts set out in the application it is seen that the petition schedule property is an extent of 68 1/2 cents in Calicut town in which a house and few trees stood belonged to the Petitioners in the O.P. The property was mortgaged under Ext. A-1 dated 20th June 1945 to one Kalyanikutty, the predecessor-in-interest of Respondents. The mortgagors filed an application u/s 11 of the Kerala Agriculturist Debt Relief Act, 1970, hereinafter referred to as ''the Act'' for redemption of the mortgage. The trial court dismissed the application for redemption by judgment dated 8th February 1966. The decree was confirmed in A.S. No. 3. The mortgagors filed a Second Appeal, S.A. No. 852/70. By judgment dated 14th November 1972 this Court allowed the second appeal and remanded the application for redemption to the trial court directing the court to consider the question whether the lessee was entitled to fixity of tenure. By judgment dated 5th September 1973 the trial court held that the lessee was entitled to fixity of tenure and dismissed the application for redemption. The judgment was confirmed in A.S. No. 254/73. The mortgagors filed second appeal, S.A. No. 4/78. This Court by judgment dated 9th February 1983 set aside the decision of the courts below and remanded the application for fresh decision. Thereafter by judgment dated 30th November 1983 the trial court held that the lessee was entitled to the benefit of the Kerala Land Reforms Act and decreed redemption of the Mortgage subject to the right of the lessee to continue to be in possession of the property. On appeal by the mortgagors in A.S. No. 55/84 the Sub Court held that the lease in favour of the lessee is not one exempted under sections of the K.L.R. Act and that the mortgagor is not an agriculturist entitled to invoke Section 11 of the Act and, therefore, the appeal was dismissed on 10th February 1989. A second appeal, M.S.A. No. 7/89, filed before this Court was allowed. This Court passed the following decree dated 2nd June 1995:
This Miscellaneous Second Appeal coming on for hearing on 23rd March 1995, upon perusing the grounds of the appeal, the judgments and Decrees of the lower courts and the material papers in the case and upon hearing the arguments of Sri M.C. Sene, Advocate for the Appellants and of Sri M. Gopikrishnan, Advocate for Respondents 5 to 10, R-12 and R-13 and there being no appearance for the other Respondents, and the matter being called on for judgment on 2nd June 1995, this Court doth order and decree;
(1)That the decisions of the courts below be and are hereby set aside and O.P. 55/62 allowed;
(2)That the Plaintiffs having deposited half the mortgage amount in court below the balance amount under the mortgage is made recoverable by Defendants 1 to 4 in 10 equal half yearly instalments together with 5 per cent interest per annum by sale of the right of the Plaintiffs;
(3)That Appellants/mortgagors will also be entitled to recover possession of the property from Respondents 6 to l4 (Respondents 5 to 13 in this appeal) who are the L.Rs. of the deceased Respondent No. 5;
(4)That the finding of the trial court that the legal heirs of the 5th Respondent''s will be entitled to continue in possession of the property will stand vacated;
(5)That the Appellants/Petitioners in O.P. 55/1962 will be entitled to recover possession of the property in execution of this decree;
(6)That this M.S.A. be and is hereby allowed as above.
This Court doth further order and decree that the parties do bear their respective costs.
Thus it could be seen that the High Court had allowed redemption mortgage by judgments in S.A. No. 852/70, dated 14th November 1972, S.A. No. 4/78, dated 9th February 1983 and on third round in M.S.A. No. 7/89, dated 2nd June 1,995. On the third and last round the High Court itself granted the decree and it has become final. This Court in M.S.A. No. 7/89 held as follows:
(1) Subject-matter of the mortgage was essentially a building in a town with the appurtenant compound with a specific interdict on the mortgagee not to effect any improvements in the property;
(2)The transaction Ext. A-1 mortgage deed, dated 20th June 1945 did not relate to land coming within the purview of the Malabar Tenancy Act or the Kerala Land Reforms Act;
(3)The mortgagee could not lease out anything more that mortgaged and the subject of the mortgage was not land but was only the building, there is no question of the lessee claiming fixity of tenure under the Kerala Land Reforms Act.
(4) The Plaintiffs/Petitioners in O.P. No. 55/1962 before the Munsiff Court "are entitled to recover possession of the property in execution of this decree".
S.L.P. No. 8401/96 filed by K. Ramachandran and Ors. was dismissed by the Supreme Court, dated 15th April 1996. The executing court allowed the E.P. No. 52/92 filed by the decree holders in O.P. No. 55/62 and ordered delivery of possession. The revision is against this order.
The execution court held that the order passed under Sub-section (4) of Section 11 of the Act shall be deemed to be a decree by virtue of Sub-section and, therefore, a second appeal would lie before this Court and the High Court has got jurisdiction to examine the legality and propriety and correctness of any decree or order passed by any subordinate court.
Learned Counsel for the Petitioners referred the decision of the Supreme Court in Kesar Singh and Others Vs. Sadhu, wherein the Supreme Court held that the question regarding the executability of appellate decree can be raised u/s 47 CPC if it goes to the root of the jurisdiction of the court which passed the decree. The same effect was the judgment in Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, There cannot be any doubt about the proposition raised by learned Counsel for the Petitioners that the jurisdiction of the court which passed the decree can be gone into at the stage of execution if it goes to the root of the matter and if the decree itself is a nullity.
In this case the decree was passed by the High Court in the third round in M.S.A. No. 7/89 holding that the decree holder will be entitled to recover possession of the property in execution of the decree passed by the High Court. The Petitioner''s SLP has been dismissed by the Supreme Court. The question of jurisdiction of the High Court was never raised by the Petitioners before the High Court in all the three rounds.
The validity of a decree can be challenged in execution only if the court which passed the decree was lacking in inherent jurisdiction and the decree is null and void.
But in this case there is no such inherent lack of jurisdiction. In Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, the Supreme Court held that as want of jurisdiction would be apparent on the face of such an order raising of such objection before the executing court may be barred for special reasons. Their Lordships observed that:
... Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised 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 AIR 1933 61 (Privy Council) the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction.
...the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree. If the decree is on the face of the record with out jurisdiction and the question does not relate to the territorial jurisdiction or u/s 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.
In this case Section 11 of the Act enables the mortgagor to recover the mortgaged property. Sub-section (5) of Section 11 of the Act states that the order passed under Sub-section (4) shall be deemed to be a decree. Section 21 provides an appeal against an order passed u/s 11. Sub-section (2) of Section 21 says that an order passed in appeal under Sub-section (1) shall be final.
The District Court is one of the Civil Courts amenable and subordinate to the High Court. If the High Court is satisfied that a case involves a substantial question of law, second appeal lies u/s 100 CPC against a decree. Besides it is seen that an order passed u/s 11(4) of the Act shall be deemed to be a decision and hence it has to be treated to be a decree for the purpose of second appeal.
In Secy of State v. Rama Rao AIR 1916 P.C. 21 Their Lordships of Privy Council were dealing with an appeal preferred to the District Court against dismissal of certain claim proceedings under the Madras Forest Act, 1882 and it was contended that no second appeal lay from the decree of the District Court. Their Lordships observed that:
... In Their Lordships'' opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to procedure, orders, and decrees the ordinary rules of the CPC apply.
In Malchand v. Santlal AIR 1954 Assam a Division Bench of Assam High Court held that once an order or decision is treated as decree for the purpose of appeal it will continue to have the same effect as any other decree under Code of Civil Procedure. There is no specific provision barring second appeal.
In Mohammed Jamil v. Sandagn Singh AIR 194 Lah 127 a Full Bench of that Court held that an appeal is a creature of statute and where a statute provides that right, it shall be given effect to unless it can be shown to have been expressly taken away. The right of second appeal conferred by Section 100 CPC can never be held to have been taken away by implication.
A similar question and contention raised was, decided by this Court in Karthiyayani Amma v. Varkey 1960 KLT 1177 and held as follows:
The learned Counsel for the Respondent raised a contention as to the maintainability of this second appeal. According to him no second appeal would lie in a proceeding u/s 11 of the Kerala Agriculturists Debt Relief Act because there is no specific provision for any appeal or second appeal in the matter concerned anywhere in the Act. To this, the reply of the learned Counsel for the Appellant is that a proceeding u/s 11 is a decree as is expressly stated in Sub-section 3 of Section 11 itself. I accept the view expressed by the learned Counsel for the Appellant. If an order u/s 11 of the Act is a decree it follows that an appeal, and a second appeal, will lie against the same under circumstances indicated by the CPC for suits. It may also be noted that in the court below this Respondent had not taken any objection to the maintainability of the first appeal from the order of the Munsiff. I hold that the second appeal in this case is maintainable.
Hence there is no merits in the contention. I concur with the view of the learned Judge.
This matter relates to a property building mortgaged in the year 1945. This extended litigation spanning a period of about 35 years have seen several Courts including Supreme Court and taken different modes of pleas by mortgagees, their lessees and their legal representatives. The latest plea is nullity for want of jurisdiction on the part of the High Court deserved to be rejected. The said plea was not raised at any stage before the High Court in all the three second appeals.
For all these reasons I hold that the Petitioner herein cannot be heard to contend at this stage that the decree passed by the High Court is one without jurisdiction. I do not find any illegality in the order passed by the trial court. Therefore, the C.R.P. fails and it is dismissed.