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Judgment
Ranjit Singh, J
On 17.9.2012, the Hon'ble High Court vide its order of even date had transferred the execution petition pending before it to the Debts Recovery Tribunal (DRT) at Delhi and the parties were directed to appear before the DRT accordingly. This is a case where Punjab & Sind Bank had filed a suit for recovery of Rs. 3,64,32,060.04 before the High Court. The case was settled and, thereafter, on a joint application moved by the parties the said suit was decreed in favour of the Bank. Based on the compromise, the final mortgage decree was also passed in favour of the decree-holder Bank. The borrower had agreed to pay the decretal amount in monthly installments of Rs. 50 lacs each.
When the judgment-debtors failed to deposit installments, the Bank filed an execution petition before the High Court and the execution proceedings accordingly commenced. Judgment-debtors appeared and participated in the execution proceedings. All the mortgaged properties were sold and the amount so realized by the decree-holder Bank was adjusted in the accounts. Judgment-debtors never raised any objection to the jurisdiction of the High Court to deal with the execution or challenged the decree passed on the basis of compromise. The High Court, however, disposed of the execution petition on 18.12.2007 and gave liberty to the decree-holder to revive the same as and when the Bank was able to locate properties of the judgment-debtors.
The Bank in this background filed an application for revival of the execution proceedings before the High Court as well as for transfer of the execution proceedings to DRT, Delhi in terms of Section 31 of the RDDBFI Act. Judgment-debtors filed their objection to the transfer of this execution petition, but the High Court, vide its order dated 17.9.2012, has transferred the execution petition to DRT.
The appellant judgment-debtors filed an objection before the DRT on the ground that the order passed by the High Court was a nullity as the High Court had no jurisdiction to pass order in view of the provisions contained in the RDDBFI Act. The Tribunal has dismissed this objection by observing that if judgment-debtors had any grievance in regard to the orders passed by the High Court, they ought to have challenged the same in appropriate Forum. Holding that the Tribunal has jurisdiction to deal with execution as present one is a case of transfer of execution proceedings. The Tribunal has revived the execution and has directed the parties to appear before the R.O. on 8.10.2015. Aggrieved against this order, the appellants have filed the present appeal.
This appeal is filed with a delay of 58 days. In an application filed for condoning this delay, it is averred that impugned order dated 3.9.2015 was applied for on 24.9.2015 which was prepared on 29.9.2015 and delivered on the same date. Thus, the appellant could file appeal on or before 23.10.2015. It is stated that after hearing argument the Tribunal had fixed 9.6.2015 for pronouncement of the order. The order, however, was pronounced on 3.9.2015 which came to the knowledge of the appellant on 24.9.2015.
It is stated that the case of the appellants was being looked after by Mr. Prem Singla. The Counsel, after collecting the certified copy of the order, informed the appellant when he could collect the certified copy of the order on 2.10.2015. Appellant Mr. Prem Singla was statedly suffering from various ailments and his movements were restricted. He accordingly could not travel from Samana to Delhi and in support some medical records have also been placed. The appellant visited his Counsel at Patiala during November 2015 and instructed the Counsel to draft appeal. The draft of the appeal was forwarded to the appellant in December 2015 which he discussed with his lawyer providing certain inputs and the final appeal was prepared on 18.12.2015. The appeal was instituted on 21.12.2015.
I have considered the above averments made in this application seeking condonation of delay, and have also perused the medical record annexed with this application. The appellant who belongs from Samana in the State of Punjab has produced medical record from a hospital at Hissar. This is a private hospital where the appellant appeared with the complaint of inability to walk. He was advised two days' rest. Thereafter, the appellant seems to have approached a hospital at Patiala on 6.10.2015 and then again in November, 2015. The medical record obtained from a private hospital is such that will not inspire much confidence. It is not difficult to obtain such a medical record from the private doctors. The appellant obviously is relying on back pain and this is the reason advanced by him to express his inability to approach the Counsel in Delhi. If the appellant could travel from Hissar to Patiala and Samana, he cannot really complain of his inability to walk or approach his Advocate at Delhi. Ultimately, the appellant approached the Advocate at Patiala to prepare the appeal which he could easily have done once he had gone to the hospital at Patiala. The appellant apparently has prepared this record to seek condonation of this delay. The delay in filing the appeal as such has not been sufficiently explained and I am not inclined to condone the same.
To be fair to the Counsel, it may call for a notice that the Counsel for the appellant has handed over copies of the following eight judgments primarily to urge that a decree passed by a Court without jurisdiction is nullity and 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:
Kiran Singh & Ors. v. Chaman Paswan & Ors., 1954 (SLT Soft) 100 : AIR 1954 SC 340.
Sushil Kumar Mehta v. Gobind Ram Bohra, 1989 (SLT Soft) 105 : (1990) 1 SCC 193.
Chiranjilal Shrilal Goenka v. Jasjit Singh, 88 (2000) DLT 697 (SC) : VIII (2000) SLT 603 : 0993) 2 SCC 507.
Union of India v. Swaran Singh, III (1996) CLT 185 : 1995 (SLT Soft) 819 : (1996) 5 SCC 501.
Balvant N. Viswamitra v. Yadav Sadashiv Mule, V (2004) SLT 136 : (2004) 8 SCC 706.
Sarup Singh & Anr. v. Union of India & Anr., (2011) 11 SCC 198.
Manilal Govindji Khona v. Indian Bank, II (2013) BC 444 (DB) : W.P. No. 3652/2012 decided by Bombay High Court on 29.8.2012.
State Bank of India v. State of Bihar & Ors., 2000 (2) BLJR 942.
The view expressed in Sushil Kumar Mehta (supra) is that even if decree which is made without jurisdiction and is nullity is executed during pendency of SLP, Supreme Court would relieve the party from injustice by setting aside the execution orders.
Though I have not felt inclined to condone the delay in filing the appeal and the appeal liable to be dismissed on this count, yet I may observe that the decree in the present case was on the basis of a compromise where the appellants had raised no objection to the jurisdiction of the High Court to deal with the case or to pass an order while decreeing the suit. Thus, the appellants had acquiesced to the jurisdiction of the High Court. The appellants did not even raise any objections at the stage of execution when three of the mortgaged properties were sold. It is only now when the case has been transferred by the High Court while reviving the execution petition that the appellants have raised this plea to urge that the decree is a nullity. Counsel for the appellants would refer to the observation by the High Court that DRT was to consider this issue and the High Court had declined to make any comment on this aspect. However, the issue of nullity, if any, is to be appreciated in the background of fact and circumstances where the appellants are clearly seen to have acquiesced to the jurisdiction of the High Court. The present decree was passed on consent which the appellants are now challenging in this manner. In this background, it may not be open for the appellants now to turn around to raise the plea of jurisdiction of the High Court to challenge the decree so passed on consent. No case for condoning the delay is made out and the appeal is dismissed on the ground of delay.