Raj Kumari vs The Co-operative Insurance Co. Ltd.

Harnam Sigh, J.—In order to appreciate the point arising in Execution Second Appeal No. 47 of 1951, the facts must be set oat in some detail.

On 17-5-1934, the trial Court decreed with costs the claim of the Peoples Bank of Northern India Limited for Rs. 2,461 against Shri Rajkumar Singh.

The Peoples Bank of Northern India Limited went into liquidation and the Co-operative Insurance Company Limited being the assignee decree-holder, is executing that decree in the Court of the Senior Subordinate Judge, Kangra, at Dharamsala. Indeed the decree has been sent for execution to the Court executing the decree u/s 39, Code of Civil Procedure, 1908.

3a. In the execution proceedings Shrimati Rajkumari, legal representative of Shri Rajkumar Singh, objected to the execution of the decree on the ground that the decree was a nullity having been passed against Shri Rajkumar Singh after his death which took place on 4.5.1934.

In deciding the case the executing Court found that it was proved that Shri Rajkumar Singh, judgment-debtor, died before the decree sought to be executed was passed against him and that being so the decree in question was a nullity and in executable. The executing Court then found that the Court executing the decree sent to it has the same powers in executing such decree as if it had been passed by itself. In other words the executing Court found that the objection that the decree was a nullity could be entertained by the transferee Court.

From the order passed by the executing Court the Co-operative Insurance Company Limited preferred an appeal in the Court of the District Judge, Hoshiarpur.

In deciding Miscellaneous Civil Appeal No. 36 of 1949 the District Judge, Hoshiarpur, has found that the transferee Court has no jurisdiction to entertain the plea that the decree was a nullity. On the second point the Court has found that there was no proof on the record that Shri RajKumar Singh died before the decree sought to be executed was passed.

From the order passed by the lower appellate Court on 13-10-1949, Shrimati Rajkumari had come up in appeal in the High Court u/s 47 read with Section 160, Code of Civil Procedure.

Shrimati Rajkumari died during the pendency of the appeal in this Court, and Sardar Gurbakhsh Singh, step-son of Shrimati Rajkumari, has been impleaded on the record as legal representative.

Mr. Daya Kishan Mahajan, learned Counsel for the Appellant, urges that the lower appellate Court was in error in finding that the Court executing the decree sent to it does not possess the same powers in executing such decree as are possessed by the Court which passed the decree. On this point Counsel cites Firm Radha Kishen Sohan Lal v. Firm Bihari Lal Asanand A.l.R. 1934 Lah. 117 (2). In that case Bhide J. said:

There seems to be no justification for drawing any distinction in this respect between the powers of the Court passing a decree and those of the Court to which a decree is transferred for execution. According to Section 42. CPC the latter Court has generally the same powers as the former in the matter of execution of decrees and in the absence of any specific provision to the contrary it seems anomalous to hold that while the Court passing the decree is entitled to refuse to execute a decree which is a nullity, the Court to which the decree is transferred for execution cannot take notice of such an objection. No authority exactly in point was cited on either side, but the decision in G. Atherton and Co. Vs. S. Habib Baksh, shows that a Court to which a decree is transferred for execution can entertain such an objection.

In my judgment the decision in Firm Radha Kishen Sohan Lal v. Firm Bihar Lal Asanand AIR 1934 Lah. 117, governs the point raised in these proceedings.

Reliance is placed by the assignee decree-holder on the decision in S.A. Nathan v. S.R. Samson 9 Rang. 480 (F.B.), Now, the point that was referred for decision to the Full Bench in that case was:

Can a Court to which a decree has been transferred refuse to execute a decree on the ground of its nullity as haying been passed by a Court which had no jurisdiction to deal with the matter which came before it.

In S.A. Nathan v. S.R. Samson, 9 Rang. 480 (F.B.) the objection was that the decree was passed in a case where the Court had no jurisdiction with regard to four of the six Defendants, and as it was quite impossible to separate the decree as to the remaining persons, the whole decree ought to be regarded as a nullity. In that case Page, C.J., (Held and Carr JJ. concurring) said:

The Learned Advocate relied also upon that cases cited above in which it has been held that where a decree has been passed against a dead person the executing Court is entitled to challenge its validity on the ground that it was passed without jurisdiction, and was a nullity. But those cases, in my opinion, do not assist the Respondent because, as has already been pointed out, in such cases the decree that was passed was not a "decree" at all in the eye of the law, and therefore, was in executable and could be disregarded by the executing Court.

In 9 Rang. 480 (F.B) Carr, J. said:

Cases in which a decree has been passed against a person not duly impleaded involve somewhat different considerations. Where a decree has been passed against a person after his death we might safely say that it is a nullity, but I should myself prefer to avoid the use of the dangerous word nullity, and to say simply that the decree is in executable because it has been passed against nobody and is therefore, executable against nobody If it is sought to execute the decree against the estate of the deceased person in the hands of his legal representatives it is open to those representatives to contest execution on the ground that they are strangers to the suit, and are, therefore, not bound by the decree; and they can rightly claim that the estate passed to them at the moment of the deceased''s death before the decree was passed, and that, therefore, there is no estate liable to be seized in execution.

Finding as I do, that the assignee decree-holder can derive no assistance from what was said in S.A. Nathan v. S.R. Samson 9 Rang. 480 (F.B.) I have no doubt that it was open to the transferee Court to entertain the objection that the decree having been passed against a| dead person was a nullity.

I now pass on to consider whether there was no proof on the record that Shri Rajkumar Singh died on the 4th May 1934.

In finding that there was no proof on the record that Shri Rajkumar Singh died on the 4th of May 1934, the lower appellate Court has not considered the evidence that was examined on that point. Now, the evidence on the point was Exhibit R/3, certified copy of mutation No. 86 sanctioned on the 8th June 1937. In Exhibit R/3 it is stated that Shri Rajkumar Singh died on the 4th May 1934.

Mr. Hemraj Mahajan, learned Counsel for the Respondent, urges that copy of the mutation, Exhibit R/3, was not legally before the Court. The argument raised is that neither the patwari who entered the mutation nor the Revenue Officer who attested the mutation was examined in the execution proceedings. In my opinion it was not necessary for the objector to prove that all the formalities in respect of the mutation had been duly complied with. Under illustration (e), Section 114, Indian Evidence Act 1872, there is a presumption that official acts have been regularly performed: omnia praesumuntur rite esse acta. This presumption has not been rebutted. For an authority on this point Bhagwan Das v. Mangal Sain AIR 1929 Lah. 93, may be seen.

As stated above, Exhibit R/3 shown that Shri Rajkumar Singh died on the 4th May 1934 while the decree sought to be executed was passed against him on the 17th May l931 That being so, it is plain that the decree in question is no decree in the eye of law.

For the foregoing reasons, I allow appeal with costs and setting aside the order passed by the lower appellate Court on the 13th October 1949, restore the order passed by the executing Court on the 24th June 1949.