Sunhera vs Har Narain (deceased) by his L.Rs

J.V. Gupta, J.

The decreeholdersappellants got a preliminary decree for partition on November 30, 1959 and the final decree on July 11, 1960, which was maintained up to the High Court. The decreeholders carried out the execution of the said decree. The respondents raised objection inter alia on the grounds that they being the nonproprietor and Chamar Harjans as well as the residents of the village since the time of their forefathers, had become owners of the property in their possession and were interested in the result of the suit. According to them, a few proprietors obtained the decree for possession against them under Order l Rule 8, Code of Civil Procedure, (hereinafter called the Code). The provisions of Order 1 rule 8 of the Code had not been complied with and, thus, they had not been given notice of the suit and as such, the entire proceedings were vitiated. In the reply filed to the objections, the allegations made were controverted. It was inter alia pleaded that the objections had not locus standi to raise the objections as they were not the residents of the village from the time of their forefathers. It was also alleged that the suit had been hotly contested up to the High Court and that the provisions of Order 1 rule 8 of the Code, were duly complied with. On the pleadings of the parties, issues were framed and the parties were allowed to lead evidence. One of the main issues hotly contested was whether the decree for partition under execution was illegal and a nullity on the grounds alleged in paragraph 3 of the objection petition. The executing Court came to the conclusion that all the proprietors of the village in this case will be deemed to have been represented although they were not specifically named in the plaint or the notice under Order 1 rule 8 of the Code. The nonproprietors of the village were not sued in the partition suit and that they could not be deemed to be parties to the suit. They had also no right to file the objections under section 47 of the Code. At the most they had the right to bring a separate suit against the decreeholders. Ultimately, it was held that the executing Court could not go into the question of invalidity and the legality of the decree under execution, as alleged in the objection petition. Thus, the decree was held to be valid and a legal one. The other objections raised on behalf of the objectors were also negatived by the executing Court. In appeal, the only point raised on behalf of the objectors was that there had been noncompliance of Order 1 rule 8 of the Code which was mandatory in nature and, therefore, on that ground alone, the appeal merited acceptance. The learned Additional District Judge found that there was noncompliance of the provisions of Order 1 rule 8 of the Code in the suit filed on behalf of the decreeholders and, thus, the decree passed by the Civil Court was a nullity. Consequently, the appeal was allowed. The learned lower appellate Court did not set aside the impugned order alone but also the judgment and decree of the Civil Court and directed the Senior Subordinate Judge to carry out the proclamation under Order 1 rule 8 of the Code and to decide the case afresh. Dissatisfied with the same, the decreeholders have filed this second appeal in this Court.

The learned counsel for the appellants, contended that the executing Court had no jurisdiction to go behind the decree as to hold that there was no compliance of Order 1 rule 8 of the Code. In support to the contention, the learned counsel relied upon Hira Lal Patni v. Sri Kali Nath, AIR 1962 Supreme Court 199; V.D. Modi v. R.A. Rehman, AIR 1970 Supreme Court 1475; Ram Sarup v. Food Corporation of India, 1979 PLJ 98 and Sharam Singh v. Union of India, 1979 PLJ 260. It was further contended by the learned counsel that from the file of the trial Court in the suit, it was amply proved that there was the order dated April 7, 1948, directing the issuance of the notice under Order 1 rule 8 of the Code and that there was an officenote to the effect that the said order had been complied with. Not only that, many people came forward after the issuance of the said notice which was itself evidence to show that necessary proclamation was made in the village. In any case, argued the learned counsel, there is always presumption under section 114(e) and (f) of the Indian Evidence Act, that all judicial and official acts have been regularly performed and that the common course of business has been followed in particular cases. In support of this contention, the learned counsel relied upon Piara Ram v. Sohawa, AIR 1928 Lahore 910; Jitendra Nath v. Manmohan Ghose, AIR 1930 Privy Council 193 and Ahad Najar v. Ram Chand, AIR 1965 Jammu and Kashmir 31. The learned counsel also contended that in any case under no circumstances the decree could be set aside in toto. The persons who were parties to the decree and were present before the Court were bound by the same. In support of this contention, the learned counsel relied upon Kumaravelu v. Ramaswami, AIR 1933 Privy Council 183 and Jai Narain v. Chandgi Ram, 1977 PLJ 525. The authorities relied upon by the lower appellate Court were distinguished on the ground that therein the points were raised in appeal against the original decrees in the suits and not against the orders passed in the execution proceedings. On the other hand, no meaningful argument could be raised on behalf of the respondent. The only reference made on their behalf was to Jai Narain''s case (supra).

After hearing the learned counsel for the parties, I find force in the contentions raised on behalf of the appellants.

The executing Court rightly came to the conclusion that it could not go behind the decree and, therefore, the question as to whether there was no proper compliance of Order 1 rule 8 of the Code or not, could not be gone into in the execution proceedings. Surprisingly enough the lower appellate Court has not touched this point and has not given the finding as to how the executing Court was competent to go into this question. The authorities relied upon by the lower appellate Court did not relate to the orders passed in the execution proceedings. It was held in Hira Lal Patni''s case (supra) by the Supreme Court that the validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seized of the case because the subjectmatter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subjectmatter of the suit or over the parties thereto. Similarly, in V.D. Modi''s case (supra) the Supreme Court held that 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. But where the objection as to 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 view of these authoritative pronouncements made by the Supreme Court, it is quite evident that the executing Court could not go into the question as to whether there was any noncompliance of Order 1 rule 8 of the Code, or not, in the present case.

As observed earlier, the whole approach of the lower appellate Court in this respect was wrong and illegal. Once it is so held, then no other question arises though from the record, it has been amply proved that the notice under Order 1 rule 8 of the Code was issued and in pursuance thereof many people came forward to contest the suit. The very fact that some people came forward to contest the suit who were not otherwise made parties to the suit, is itself indicative of the fact that necessary notice under Order l rule 8 of the Code was issued. In any case, there is every presumption that judicial and official acts have been regularly performed, under section 114 (e) of the Indian Evidence Act.

It is quite surprising that the lower appellate Court not only set aside the order under appeal before it, but also the judgment and decree of the trial Court passed in the suit and further directed the Senior Subordinate Judge to carry out the proclamation under Order 1 rule 8 of the Code, and to decide the case afresh. This direction was wholly unwarranted in the present case.

As a result of the above discussion, this appeal succeeds and is allowed with costs. The order of the lower appellate Court is set aside and that the executing Court dismissing the objection petition is restore. The parties have been directed to appear in the executing Court on July 20, 1984. The record of the case been sent back forthwith.