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Judgment
S.N. Jha, C.J.—This revision by the judgment debtors is directed against an order by which their accounts have been attached in an
execution proceeding.
The facts of the case are that respondent Ghulam Mohammad Khuroo instituted suit No. 50/Civil of 1983 claiming Rs. 38,175/- as dues from
the petitioners on account of execution of certain contract work and damages resulting from breach of contract, and earnest money. The petitioners
failed to file written statement within time allowed and in the circumstances on 18-7-1985, order was passed ""striking off defence. The petitioners
came to this Court in Civil Revision No. 129/1985 by order dated 17-4-1986, the revision was disposed of with liberty to the petitioners to file
written statement on payment of costs imposed by the court, by 30-4-1986 failing which the impugned order striking off the defence was to stand
confirmed. Unfortunately, the petitioners failed to file the written statement within time. They did so on 14-6-1986, The written statement was
accepted by the trial court against which respondents filed Civil Revision No. 144/1986. By order dated 11-5-1989, this Court set aside the order
by which the written statement was accepted on the ground that in terms of the earlier order, the written statement should have been filed by 30-4-
1986. At the stage of trial the witnesses of the respondent were cross examined on behalf of the petitioners but they did not examine any witness
and thus led no evidence of their own. It is futile to go into the course which the trial of the suit took at this stage. Unfortunately the appeal
preferred by the petitioners against the judgment and decree in the suit was dismissed on the ground of limitation with the result that the decree of
the trial court rendered virtually ex parte became final. The respondent levied execution in course of which impugned order came to be passed on
27-8-2002.
Mr. S.R. Hussain, learned AAG appearing for the petitioners submitted that the declaratory decree passed by the trial court cannot be executed
and, therefore, the execution case is not maintainable. He referred to the relief portion of the plaint and the decree sheet. The relief portion of the
plaint reads as under:-
That the plaintiff prays that the Hon'ble Court declare the defendants have committed a breach of contract and they (defendants) owe to the
plaintiff an amount of Rs. 38,175/-(thirty eight thousand and one hundred and seventy five). The Hon'ble court may also pass any other order and
decree for the consequential relief including release of earnest money and decretal amount with interest and costs.
The decree sheet reads as under:
Suit is decreed with costs and decree in favour of the plaintiff and against the defendants is passed in the following terms: The plaintiff is declared
entitled for the recovery of the principal decretal amount of Rs. 38,175/- from the defendants along with the compound of the interest at the rate of
15% P.A. from the date the payment was with-held by the defendant till total amount is recovered from them. The defendants meanwhile are
directed to review the contract card of the plaintiff which the plaintiff is entitled to get it released from this Court after the period of appeal in this is
over. The plaintiff is also held entitled to the cost of the suit.
It is well settled that the nature of the suit has to be gathered on the basis of the averments in the plaint as a whole and not only the relief(s)
sought by the plaintiff. Perusal of the plaint as a whole leaves little room for doubt that the suit was for recovery of money. Even if the respondent
did not seek such relief in so many words, the court was competent to mould the reliefs claimed and grant appropriate reliefs which the plaintiff
was be entitled to. Indeed, the respondent had sought ""any other order and decree for the consequential relief.' The decree declaring the
respondent entitled to recovery of money was thus in accordance with the case of the respondent and not beyond the scope of the suit. In any
view of the matter, the decree having attained finality, its correctness cannot be questioned at this stage.
On behalf of the petitioner it was submitted that the respondent had paid a fixed court fee of Rs. 12.50 payable in a declaratory suit and,
therefore, the suit can not be treated as a recovery suit. In reply counsel for the respondent submitted that the validity of the decree cannot be
questioned on the ground of insufficiency of court fee paid, much less is an execution case as it is open to the concerned court to ask the decree
holder to make the deficiency of court fee.
Counsel for the petitioners in support of the submission that declaratory decree cannot be executed placed reliance on State of M.P. Vs.
Mangilal Sharma, . In that case the court had made a declaration that the plaintiff shall be treated to be in continuous service. No order for arrear
of salary was passed. It was held that arrear of salary could not be ordered to be paid in execution of decree. It need hardly be pointed out that
though salary is concomitant of employment, the payment depends on performance of duties and, therefore, where the employee is notionally
treated to be in continuous employment, for the past period when he did not render service, he may not be held entitled to arrear and thus where
no decree is passed to that effect, arrear cannot be ordered to be paid in execution of such decree. The decision thus is of no help to the
petitioners.
Mr. Hussain then submitted that the suit was time-barred and, therefore, the decree passed therein must be treated to be a nullity and on this
ground alone, the execution case is fit to be dismissed. He submitted that though the defence of the petitioners stood struck off (as a matter of fact,
written statement was not accepted), by reason of Section 3 of the Limitation Act, a duty was cast upon the trial court to consider whether the suit
was barred by limitation even if no such defence was taken by the defendants i.e. the petitioners herein. Thus in the instant case, even though the
petitioner's written statement was not accepted or the defence stood ""struck"" of"" as stated in different orders, the trial court had no jurisdiction to
proceed with the suit. Mr. Hussain stated that in terms of Article 56 of the Jammu and Kashmir Limitation Act, the suit for the recovery of money
had to be filed within three years. In the instant case, the suit was filed after about 14 years. In support of his contention in this regard reliance was
placed on Manick Chandra Nandy Vs. Debdas Nandy and Others, .
The submission at the first instance appears to be attractive, but lacks in substance. The question has to be considered in the context of Section
47 of the CPC as the impugned order has been passed on application objecting to the maintainability of the execution case u/s 47 of the Code.
Section 47 lays down that the questions relating to the execution for and discharge of the satisfaction of the decree shall be determined by the court
executing the decree, and not by a separate suit. In other words, the question relating to executability of the decree etc. has to be decided by the
executing court i.e. in the execution proceeding. Indeed, suit raising such dispute/question would not be maintainable.
The question is whether the decree passed in a time barred suit is a nullity so as to render the decree in executable. 'Nullity' or 'null and void' are
well understood expressions. Something which does not exist in the eye of law is a nullity. It is not formally required to be struck down by a court
of law. The courts would simply ignore it as non-est. On the other hand, something which is 'voidable' or illegal has to be declared as such. Its
effect can not be taken away otherwise except by setting it aside. It is true that in view of the provisions of Section 3 of the Limitation Act, the
court is obliged to consider the question of limitation even where such defence has not been taken by the defendant and thus where a decree is
passed in a time barred suit ignoring the mandate of Section 3, the decree may be said to be bad or illegal, but it cannot be said that there was any
inherent lack of jurisdiction to pass the decree. The term 'jurisdiction' has different shades of meaning. It is often losely used to challenge an illegal
order or judgment etc. as being without jurisdiction, but if the court has jurisdiction to pass a correct decree or order, it can pass an incorrect
decree or order too. That decree, order etc. may be set aside in appeal or revision, the case may be. But it can not be said that the court lacked in
jurisdiction to pass the decree.
The question as to nullity of a decree has to be considered in the sense of inherent lack of jurisdiction. u/s 9 of the Civil Procedure Code, the
courts have the jurisdiction to try all suits of civil nature excepting suits of which cognizance is expressly or impliedly barred. It need hardly to be
pointed out that several special statutes contain provisions barring jurisdiction of the Civil Court to entertain suits of particular kind. Where in such
cases any decree passed by a Civil Court, it can be said that decree was passed without jurisdiction in the sense of being a nullity. Another
instance of the orders/decrees passed without jurisdiction is where the court lacks in territorial or pecuniary jurisdiction to try the suit. In such cases
also the decree may be stated to be nullity and, therefore, inexecutable. Another instance of null and void decree is one passed against a dead
person without bringing his legal representatives on record. It is not necessary to multiply instances of cases of null and void decree.
The only question for consideration in the instant case whether the decree passed in a time barred suit is nullity and, therefore, inexecutable. In
my opinion, for the reasons indicated above, such a decree may be a bad decree, liable to be set aside in appeal/revision, as the case may be, but
it can not be said to be a null and void decree which cannot be executed in an execution proceeding. It is settled law that the executing court
cannot go behind the decree, that is to say it can not go into the question of correctness or otherwise of the decree. It can go behind the decree
only in the case of the decree being a nullity - a decree which does not exist in the eye of law and, therefore, can be ignored.
Where the court is otherwise competent to entertain the suit, but the claim is found to be time barred, the court would not grant relief but it only
means that the remedy of the plaintiff is bared by law of limitation, it does not mean that the court inherently lacks jurisdiction to try the suit so as to
make decree null and void, and out of the pale of execution proceedings.
In the case of Manick Chandra Nandy v. Debdas Nandy and Ors. (supra), the question for consideration was the scope of revisional power
of the High Court u/s 115 of the Civil Procedure Code. The subordinate court had set aside an ex parte decree under Order 9 Rules 13 of the
Code, the High Court in revision set aside the order of the subordinate court. The Supreme Court held that whereas in appeal the court is free to
decide all questions of law and fact which arise in the case, in exercise of revisional jurisdiction, the High Court is not entitled to re-examine or re-
assess the evidence on record and substitute its own finding on facts for those of the subordinate court.
Counsel for the petitioner referred to observations in para 5 of the judgment in the aforesaid case to the effect that plea of limitation concerns
the jurisdiction of the court and, therefore, while determining the correctness of the decision of the subordinate court, on the plea of limitation, the
High Court may have times have to go into a jurisdictional question of law or fact, that is, it may have to decide collateral question upon
ascertainment of which the decision as to the jurisdiction depends.
As indicated above, the decision was rendered while considering the scope of revisional power u/s 115 of the CPC and, therefore, the
observation ""plea of limitation concerns jurisdiction of the court"" has to be understood in the context of the term ""jurisdiction"" occurring in Section
115 of the Code. On a plain reading of Section 115, it is manifest that the term has been used to mean ""jurisdiction simplicitor"" and not inherent
jurisdiction. For, as the section suggests, the impugned order may be result of exercise of jurisdiction not vested in the court by law, and also,
failure to exercise jurisdiction or illegal or irregular exercise of jurisdiction. Thus where the subordinate court commits any illegality or irregularity in
exercise of its jurisdiction, the High Court may correct the error, that does not mean that the subordinate court has no jurisdiction to pass the
order. The above decision, therefore, lends no help to the petitioners.
In Bansilal Bansidhar Vs. Nandlal, , the award of the arbitrator was made rule of the court before the expiry of the period of limitation for filing
objections against the award. A question arose as to whether decree was nullity. The contention in this regard was rejected in the following
words:-
....If the Court passes a decree in terms of the award before the expiry of limitation the decree cannot be treated as a nullity so as to permit raising
of the ground at the stage of execution. Such a defect, if any, may amount at the highest to an irregular exercise of the jurisdiction which is curable
by consent and the same is not tanta-mount to an inherent lack or want of jurisdiction rendering in the judgment and decree a nullity.
In Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, a three Judge bench of the Supreme Court observed that:
when decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in execution proceeding if
the objection appears on the face of the record. Where the objection as to the jurisdiction of the court to pass 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 raised, the executive
court will have no jurisdiction to entertain an objection as to the validity of the decree eyen on the ground of absence of jurisdiction.
The following observations in the above said case may also be usefully quoted:
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,
and cannot entertain any objection that the decree was incorrect in law or in 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.
In Ittavira Mathai Vs. Varkey Varkey and Another, a four Judge Bench of the Apex Court held that the question of limitation was a mixed
question of law and fact and where the same had not been raised before the trial court or before the High Court, it could not be allowed to be
raised before the Supreme Court. If that is so, I wonder, how such a plea can be raised in the execution proceeding, considering that the executing
court can not go behind the decree as it is unless the decree and has to execute the decree is a nullity.
A more direct authority is to be found in the case of Bhawarlal Bhandari Vs. M/s. Universal Heavy Mechanical Lifting Enterprises, In that
case, award dated 17-4-1985 was filed in the court on 23-3-1989 by the arbitrator. Notice was issued but no objection was filed. The court
made the award rule of the court and award decree was passed on 2-6-1989. At the stage of execution it was argued on behalf of the judgment
debtor that proceeding in court was time barred on account of late filing of the award by the arbitrator and hence the award decree was a nullity.
Two points were formulated for consideration - (a) whether the award decree dated 2-6-1989 was a nullity being barred by limitation, and (b)
whether the executing court can go behind the decree. Rejecting the contention, the Supreme Court observed:
........In execution proceedings, such a contention requiring the executing court to go behind the decree cannot be sustained. The question whether
the award decree was filed by the arbitrator on his own or not was a mixed question of law and fact. The Division Bench in the impugned judgment
itself has noted that I the award was filed by the arbitrator suo motu, then the award decree cannot be said to be barred by limitation but if, on the
other hand, the award was filed by the arbitrator at the instance of the appellant-decree holder, then the question of limitation would arise. The
aforesaid observation of the Division Bench itself indicates that this is a mixed question of law and fact. That was an issue to be raised before the
award was made a rule if the court. But such a plea can never make the decree a nullity especially when the respondent for reasons best known to
it did not think it fit to file objections u/s 30 of the Arbitration Act, 1940. It is well settled that the executing court cannot go behind the decree
unless it is shown that it is passed by a court having inherent lack of jurisdiction, which would make it a nullity.
Reference may also be made to the recent decision of the Apex Court in Rafique Bibi (D) by Lrs. Vs. Sayed Waliuddin (D) by Lrs. and
Others, on the point of distinction between illegal decree and null and void decree.
In the above premises, the submission of counsel for the appellant that the suit being barred by limitation, the decree is inexecutable, is
rejected.
In the result, I find no merit in this civil revision which is accordingly dismissed without any order as to costs.