Nilmoni Dora vs Ripumandan Gountia

Courtney-Terrell, C.J.—This is an appeal from an order of the executing Court on an objection u/s 47. Civil P.C. The plaintiffs had obtained a foreclosure decree in respect of the land mortgaged and the decree-holder had been put into possession of the mortgaged property. The judgment-debtors then objected to the order for possession and asked for re-delivery of possession on the ground that the decree was granted without jurisdiction. The subordinate Court made an order for the restoration of possession of the property to the judgment-debtors and an appeal was taken from that order to this Court and by consent of the parties the decree was modified on 18th March 1931 to the effect that

if the defendants other than defendants 5 and 6 pay up the amount of the final decree by the end of March next then the plaintiff decree-holder will give up possession of the lands, the subject matter of the suit, to the defendants. Failing the payment by the defendants by March next the order of the Subordinate Judge will be set aside and the delivery of possession to the plaintiff will be confirmed. If the deposit is made by the defendants at a time when the crops are standing, then the plaintiff decree-holder will be entitled to appropriate the crops.

It appears that one of the parties who was a minor was not a party to that compromise and now raises the subject matter of the appeal on his own account and accordingly we have to deal with the merits of the appeal from the order of the executing Court restoring possession to the judgment debtors. The basis of the decision of the executing Court is that the Court which granted the decree had no jurisdiction to grant the decree on the particular mortgage bond because the mortgage bond was invalid under the law of the Central Provinces and was incapable of registration.

Now apart from the merits of the decision itself and on the merits the decision of the learned Subordinate Judge of the executing Court is clearly erroneous on the sections of the Acts as they stand. The learned Subordinate Judge bad no jurisdiction as an executing Court to go behind the decree of the Court which granted foreclosure. An attempt has been made to argue that if the decree for foreclosure was passed without jurisdiction the executing Court is entitled to treat it as a nullity. This contention thoroughly confuses the notion of an order made without jurisdiction and an order made in illegal exercise of jurisdiction.

The executing Court is no more entitled to go behind the decree and say that on the mortgage the Court had no jurisdiction to pass the decree because the mortgage was invalid than it would have the right to say that the mortgage was invalid because as a matter of fact it had not been properly executed. The positions are entirely analogous. The order of the learned Sub-ordinate Judge was erroneous and must be set aside. The appeal is allowed and the respondents must pay the costs of this appeal and the costs of the review application. Hearing fee in the case of the review application two gold mohurs.

Kulwant Sahay, J.

I agree.