Radhey Sham Vs. Gobind Lal and Others - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - section 21 of the code of civil procedure enacts that no objection to the place of suing should be allowed by the appellate or revisional court, unless there was a consequent failure of justice. 21 of the civil procedure code enacts that no objection to the place of suing should be allowed by an appellate or revisional court unless there was a consequent failure of justice. 11 of the suits valuation act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. --thus, obviously the intent of the legislature was to curtail the time of taking objection to territorial or pecuniary to the earliest possible opportunity and debarring a party from taking such objection in the appellate or revisional court for the first time, unless it has resulted in failure of justice. as a matter of fact, there could not be any failure of justice if a suit triable by a sub judge i class had been tried by a sub judge iii class. taking up such objections before the appellate or the revisional court stand on the better footing than before the executing court, as the latter cannot go behind or beyond the decree passed by the trial court'.4. for the aforesaid reasons this revision petition is allowed.order1. this revision petition is directed against the order of the learned executing court whereby he held that the decree will not be executed since it was not passed by the competent court.2. brief facts:-- a preliminary decree for partition was granted by shri s. k. kapoor, subordinate judge ii class. the valuation of the suit for the purpose of court fee and jurisdiction was fixed at rs. 18,000/-. shri s. k. kapoor had no pecuniary jurisdiction to try the suit. the learned executing court came to the conclusion that since the decree was passed by the court which had no pecuniary jurisdiction, the decree was illegal. the decree holder has come up in the revision petition assailing the correctness of the order of the learned executing court.3. the view taken by the learned trial judge is unsustainable. section 21 of the code of civil procedure enacts that no objection to the place of suing should be allowed by the appellate or revisional court, unless there was a consequent failure of justice. the objection regarding pecuniary jurisdiction was not raised in the suit by thecontesting defendants it could not be raised in the execution proceedings. this matter came up for consideration before the apex court in kiran singh v. chaman paswan, air 1954 sc 340, wherein it was held thus (at p. 342):--'with reference to objection relating to territorial jurisdiction, s. 21 of the civil procedure code enacts that no objection to the place of suing should be allowed by an appellate or revisional court unless there was a consequent failure of justice. it is the same principle that has been adopted in s. 11 of suits valuation act with reference to pecuniary jurisdiction. the policy underlying ss. 21 and 99, cpc and s. 11 of the suits valuation act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. the contention of the appellants, therefore, that the decree and judgment of the district court, monghyr, should be treated as a nullity cannot be sustained under s. 11 of the suits valuation act'.this view was followed by this court in inder singh v. suba singh, air 1956 punjab 242 and thereafter in narain kumar v. neki ram, (1984) 1 ren cr 362: (air 1984 punj & har 361). in narain kumar's case (supra), the learned judge after referring to the earlier decision held as under;--'shri p. s. bajaj, subordinate judge iii class passed the decree on dec. 7, 1973, in favour of neki ram and against the petitioner and his fasther on the basis of a compromise. no objection was raised by the petitioner regarding the pecuniary jurisdiction of the learned subordinate judge before filing the objection petition under s. 47 of the code of civil procedure in the execution proceedings initiated by the decree holder to execute the decree. the observations made by the supreme court in kiran singh's case (supra) are squarely applicable to the facts of theinstant case. no foundation has been laid by the petitioner to warrant a finding that the lack of pecuniary jurisdiction on the part of the learned subordinate judge has prejudiced the case of the petitioner on merits. the ratio of the decisions in kiran singh's case (air 1954 sc 340) (supra) and mahadeo's case (air 1969 raj 304) (supra) also support the case of neki ram decree holder that the objection regarding the lack of pecuniary jurisdiction of the learned subordinate judge cannot be raised in execution proceedings by the petitioner in the absence of any prejudice on merits'.this matter was again considered by the learned single judge of this court in niranjan lal (dead) v. chhotey lal (1988) 94 pun lr 466 and it was held thus:--'thus, obviously the intent of the legislature was to curtail the time of taking objection to territorial or pecuniary to the earliest possible opportunity and debarring a party from taking such objection in the appellate or revisional court for the first time, unless it has resulted in failure of justice. as a matter of fact, there could not be any failure of justice if a suit triable by a sub judge i class had been tried by a sub judge iii class. admittedly, no objection was taken by the defendant regarding the pecuniary jurisdiction before the trial court. the lower court has taken a wrong view by holding that the provisions of s. 21 of the code of civil procedure are applicable to the appellate or revisional court and not to the court executing the decree. taking up such objections before the appellate or the revisional court stand on the better footing than before the executing court, as the latter cannot go behind or beyond the decree passed by the trial court'.4. for the aforesaid reasons this revision petition is allowed. the impugned order under challenge is quashed. the learned executing court will revive the execution proceedings and proceed with the same expeditiously. the parties through their counsel are directed to appear before the learned executing court on may 31, 1989.5. petition allowed.

Judgment:
ORDER

1. This revision petition is directed against the order of the learned Executing Court whereby he held that the decree will not be executed since it was not passed by the competent Court.

2. Brief facts:-- A preliminary decree for partition was granted by Shri S. K. Kapoor, Subordinate Judge II Class. The valuation of the suit for the purpose of Court fee and jurisdiction was fixed at Rs. 18,000/-. Shri S. K. Kapoor had no pecuniary jurisdiction to try the suit. The learned Executing Court came to the conclusion that since the decree was passed by the Court which had no pecuniary jurisdiction, the decree was illegal. The decree holder has come up in the revision petition assailing the correctness of the order of the learned Executing Court.

3. The view taken by the learned trial Judge is unsustainable. Section 21 of the Code of Civil Procedure enacts that no objection to the place of suing should be allowed by the appellate or revisional Court, unless there was a consequent failure of justice. The objection regarding pecuniary jurisdiction was not raised in the suit by thecontesting defendants it could not be raised in the execution proceedings. This matter came up for consideration before the apex Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, wherein it was held thus (at p. 342):--

'With reference to objection relating to territorial jurisdiction, S. 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court unless there was a consequent failure of justice. It is the same principle that has been adopted in S. 11 of Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Ss. 21 and 99, CPC and S. 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under S. 11 of the Suits Valuation Act'.

This view was followed by this Court in Inder Singh v. Suba Singh, AIR 1956 Punjab 242 and thereafter in Narain Kumar v. Neki Ram, (1984) 1 Ren CR 362: (AIR 1984 Punj & Har 361). In Narain Kumar's case (supra), the learned Judge after referring to the earlier decision held as under;--

'Shri P. S. Bajaj, Subordinate Judge III Class passed the decree on Dec. 7, 1973, in favour of Neki Ram and against the petitioner and his fasther on the basis of a compromise. No objection was raised by the petitioner regarding the pecuniary jurisdiction of the learned Subordinate Judge before filing the objection petition under S. 47 of the Code of Civil Procedure in the execution proceedings initiated by the decree holder to execute the decree. The observations made by the Supreme Court in Kiran Singh's case (supra) are squarely applicable to the facts of theinstant case. No foundation has been laid by the petitioner to warrant a finding that the lack of pecuniary jurisdiction on the part of the learned Subordinate Judge has prejudiced the case of the petitioner on merits. The ratio of the decisions in Kiran Singh's case (AIR 1954 SC 340) (supra) and Mahadeo's case (AIR 1969 Raj 304) (supra) also support the case of Neki Ram decree holder that the objection regarding the lack of pecuniary jurisdiction of the learned Subordinate Judge cannot be raised in execution proceedings by the petitioner in the absence of any prejudice on merits'.

This matter was again considered by the learned single Judge of this Court in Niranjan Lal (Dead) v. Chhotey Lal (1988) 94 Pun LR 466 and it was held thus:--

'Thus, obviously the intent of the Legislature was to curtail the time of taking objection to territorial or pecuniary to the earliest possible opportunity and debarring a party from taking such objection in the Appellate or Revisional Court for the first time, unless it has resulted in failure of justice. As a matter of fact, there could not be any failure of justice if a suit triable by a Sub Judge I Class had been tried by a Sub Judge III Class. Admittedly, no objection was taken by the defendant regarding the pecuniary jurisdiction before the trial Court. The lower Court has taken a wrong view by holding that the provisions of S. 21 of the Code of Civil Procedure are applicable to the Appellate or Revisional Court and not to the Court executing the decree. Taking up such objections before the Appellate or the Revisional Court stand on the better footing than before the executing Court, as the latter cannot go behind or beyond the decree passed by the trial Court'.

4. For the aforesaid reasons this revision petition is allowed. The impugned order under challenge is quashed. The learned executing Court will revive the execution proceedings and proceed with the same expeditiously. The parties through their Counsel are directed to appear before the learned executing Court on May 31, 1989.

5. Petition allowed.