Sayyad Shahalipasha S/O Sayyad Ahmad Pasha Bashiban Inamdar Vs. Sayyad Ummpasha S/O Sayyad Sahab Pasha Bashiban Inamdar Since Deceased by His L.Rs Suleman Trustee Sayyad ShahahussaIn Pasha S/O Sayyad Umarpasha Bashinban Inamdar, - Court Judgment

Excerpt:

- code of civil procedure, 1908. section 10: [subhash b. adi,j] reference issue referred was as to whether termination of workman is justified or not appointing authority i.e. state being necessary party, not impleaded - held, award cannot be passed.-- section 11: doctrine of res judicata held, doctrine cannot be invoked in an issue which is not adjudicated before court......the appellate court affirmed the said order, on the date the suit was filed, the decree was passed by the trial court, wakf act, 1998 was not in force, all that is prohibited in the wakf act is that after the commencement of the wakf act, no suit shall lie in the civil court.6. section 112 of the wakf act, which deals with repeal and savings makes it clear that all action taken in pursuance of the earlier enactment are saved and the same shall be deemed to have been done or taken under the corresponding provisions of this act. it is also well settled that when court which had the jurisdiction passed the decree, if after the decree, a new forum is created for deciding the said dispute and for executing the same the forum which passed the original decree will never lose the jurisdiction to execute the same, under these circumstances, there is no substance in the contention of the petitioner. the trial court was justified in over-ruling the objections and issuing the arrest warrant no case for interference is made out. accordingly, dismissed.

Judgment:

ORDER

N. Kumar, J.

1. This revision petition is preferred by the petitioner challenging the order passed by II Addl. Civil Judge (Jr.Dn) & JMFC, Belgaum, issuing arrest warrant to him and to another, to detain in civil prison for a period of two months, if subsistence allowance paid by Decree Holders.

2. Respondents-1 and 2 filed a suit in O.S. No. 871/88 for a decree of permanent injunction restraining the petitioner and the third respondent from alienating, leasing or creating any charge over the trust property bearing CTS No. 3294 and for directions to the third respondent to remove the erected structure in the portion of the trust property. The suit was decreed after contest en 25.07.1995, The said judgment and decree was challenged in RA 129/95, which appeal came to be dismissed affirming the judgment and decree of the trial Court, The said decree has become final. In spite of the said decree, the defendants-judgment debtors disobeyed the order of the mandatory injunction. Therefore, the plaintiff-decree holders filed Execution No. 653/07 for arrest and detention of the judgment debtors. On the execution side, notice was served on both the judgment debtors. The third respondent-second judgment debtor remained absent. He was placed ex parte. The petitioner-first judgment debtor appeared through Counsel, but filed no objections. Decree holder was examined as P.W-1. He produced Ex.P-1 to P-9 to substantiate his case of disobedience, No evidence was adduced on behalf of judgment debtors. Learned Counsel appearing for both the parties addressed arguments. The contention urged at the time of argument by the judgment debtor was that on the date the decree was passed in appeal, on the date the execution petition was filed, the Court which bad passed the decree and the Court which was executing the decree had no jurisdiction. Therefore, the decree is not executable, It is their contention that with the passing of Wakf Act, 1995, the jurisdiction of the Civil Court is taken away,

3. The learned trial Judge after considering the aforesaid contentions held that the said contention was not taken on the original side, on the execution side, no objections were, filed and no evidence was adduced and therefore, it held that the said submission is without substance. Relying on the evidence un-rebutted, the trial Court held that there is disobedience of the decree of mandatory injunction and therefore it passed the order of arrest of judgment debtors

4. Sri, C.R. Patil, learned Counsel appearing for the petitioner assailing the impugned order contends that the question urged is purely a question of law. If a decree is passed by the Court which has no jurisdiction, it is a nullity. Such an objection can be taken even on the execution side without filing objections. Therefore on the ground that objections are not filed, evidence is not adduced, the trial Court was not justified in rejecting the said plea.

5. If a decree is passed by the Court which had no jurisdiction, it is void, ab initio and the said contention can be taken in appeal, revision or even in execution proceedings. There is no quarrel about the said legal position. But in the instant case, the decree is passed on 25.07.1995. Subsequently, on 01.09.1998, the appellate Court affirmed the said order, On the date the suit was filed, the decree was passed by the trial Court, Wakf Act, 1998 was not in force, All that is prohibited in the Wakf Act is that after the commencement of the Wakf Act, no suit shall lie in the Civil Court.

6. Section 112 of the Wakf Act, which deals with repeal and savings makes it clear that all action taken in pursuance of the earlier enactment are saved and the same shall be deemed to have been done or taken under the corresponding provisions of this Act. It is also well settled that when Court which had the jurisdiction passed the decree, if after the decree, a new forum is created for deciding the said dispute and for executing the same the forum which passed the original decree will never lose the jurisdiction to execute the same, Under these circumstances, there is no substance in the contention of the petitioner. The trial Court was justified in over-ruling the objections and issuing the arrest warrant No case for interference is made out. Accordingly, dismissed.