Hariharan Vs. Malliga and anr. - Court Judgment

Excerpt:
family - common property - section 27 of hindu marriage act, 1955 and order 21 rules 31, 35, 37 and 38 of code of civil procedure, 1908 - revision petition challenging order of executing court directing petitioner (husband) to return jewels to first respondent (wife) - property presented at time of marriage for purpose of common enjoyment by husband and wife - under section 27 of act if property is common property belonging to both husband and wife court will have jurisdiction to make provisions with regard to same in decree - evidence available before court show that said property was common property - on said footing court has jurisdiction to give directions with regard to that property - not open to petitioner to raise question of jurisdiction in revision against order of executing court when same depends upon certain basic facts without disputing facts at trial stage - held, petitioner not entitled to raise new plea of fact in revision. - - thus, the averment is to the effect that the property was to be enjoyed commonly and it was a common property. certainly, the petitioner could have well filed an appeal against the order of the principal subordinate judge in the main o. there is no doubt that the requirements prescribed by the full bench of this court, in the above decision, are satisfied in the present case. it is a well-settled proposition that if parties quote a wrong provision of law, that would not prevent the court from applying the correct provision of law and pass orders.srinivasan, j.1. the revision petition has been filed by the judgment debtor who is the husband of the 1st respondent herein. the order sought to be revised is one directing the arrest of the petitioner here in on the ground that he had not complied with the order of the executing court dated 21-4-1989, directing him to return the jewels to the 1st respondent.2. the relevant facts are as follows :--the 1st respondent herein filed o.p. 84 of 1984 on the file of the principal subordinate judge, pondicherry, for dissolution of her marriage with the petitioner and a direction to the petitioner herein to hand over the properties mentioned in the schedule to the petition as per section 27 of the hindu marriage act, hereinafter referred to as the act. in paragraph 4 of the petition, it was stated as follows:--'at the time of the marriage, the petitioner's parents on behalf of the petitioner had presented and handed over to the first respondent the properties mentioned in the schedule for conducting the conjugal home of. both the husband and wife.' the petitioner, remained ex parte in the original petition. the learned subordinate judge passed an order on 25-2-1985 granting divorce as prayed for by the 1st respondent herein and directed the petitioner herein to return items 2, 3 and 4 of the schedule mentioned properties. besides, certain jewels set out in item i of the schedule are also ordered to be returned to the 1st respondent herein.3. the 1st respondent filed execution petition in e.p. 225 of 1988 for directing the petitioner to return the jewels set out in the order of the court and directing the arrest of the petitioner in the event of his default in complying with the order. in the execution petition, the provisions of law quoted are order 21, rules 35, 37 and 38, c.p.c.4. the executing court passed an order on 23-3-1989 after hearing the petitioner herein also. the petitioner had filed a counter and contested the petition. the contentions raised by the petitioner were rejected by the executing court and he was directed to comply with the order in the main case. but the language used in the order of the executing court was 'to make payment'. instead of directing the petitioner to hand over the jewels, he was directed to make payment by 21-4-1989. the mistake was brought to the notice of the court by a memo filed by the 1st respondent and on 21-4-1989 the order directing the petitioner herein to return the jewels and posting the matter to 19-7-1989 was made by the executing court. the matter was posted for hearing on 2-8-1989 and the petitioner was absent on that date. the executing court passed orders on the ground that the petitioner had not complied with the order passed earlier on 21-4-1989. it is that order which is being challenged in this revision by the petitioner.5. the first contention raised by learned counsel for the petitioner is that the order made in o p. no. 84 of 1984 is a nullity and it cannot be executed. for the purpose of raising this contention, learned counsel submits that the property which was sought to be recovered by the 1st respondent herein in the o.p. was her stridhana property and section 27 of the act would not apply to any property that belonged exclusively to either of the parties. section 27 of the act reads :'in any proceeding under this act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.' 6. learned counsel rightly contends that under the section, the court has no jurisdiction to deal with any property which does not belong to the husband and wife jointly.7. however, the contention that the order of the court is nullity is not available to the petitioner for the following reason i have already extracted the relevant averment made by the respondent herein in the original petition. as per the said averment, the property was presented at the time of the marriage and handed over to the first respondent for the purpose of conducting the conjugal home of the petitioner and the 1st respondent. thus, the averment is to the effect that the property was to be enjoyed commonly and it was a common property. on that footing, the 1st respondent prayed for a direction under section 27 of the act for return of the property set out in the schedule to the petitioner. the petitioner did not contest the o.p. or raise an issue that the property was not the common property. he never disputed the claim before the court. the only evidence available before the court was that of the first respondent herein, of the basis of the same, it directed delivery of the property referred to already, under the provisions of section 27 of the act. when there was no issue before the court as to whether the property was common property or not, there was no duty on the part of the court to raise an issue by itself and decide the question. a particular fact has to be pleaded by the party and he has to join issue with the opposite party on the averments of facts contained in the pleading of the opposite party. in this case, when there is a specific pleading by the first respondent herein that the property set out in the original petition was the common property, the petitioner ought to have disputed the same if he intended to contend that the court had no jurisdiction to pass the order in respect of that property. in the absence of any pleading by the petitioner, the court had jurisdiction to pass an order, as it did, with reference to the property set out in the schedule to the original petition.8. learned counsel for the petitioner submits that in the notices issued prior to the filing of the petition, the first respondept described the property as the stridhana property and that would show that it was her exclusive property. it is not open to the petitioner herein to rely upon the notices at the stage of execution. if he had desired to rely on the notice and object on the basis, of any alleged admission in the notice, the only course open to him was to have appeared in court and filed a statement contesting the claim of the first respondent that it was a common property. even if there had been any inconsistency between the notice issued prior to the petition and the pleading in the petition, it was for the petitioner to have relied on it in support of his claim that the court had no jurisdiction to deal with the property as it was not a common property. just because the items are described as stridhana properties, it would not mean that the specific pleading of the first respondent in the original petition should be ignored by the court. in any event, that will not vitiate the order of the court passed in the main o.p. which is based upon the pleading and evidence of the first respondent herein that it was a commen property. even otherwise, the nomenclature of the property as found in the notice of the advocate would not conclusively decide the issue.9. learned counsel for the petitioner placed reliance on the judgments of the supreme court and this court holding that parties cannot by consent, confer jurisdiction on a court and that if the court had no jurisdiction by itself, it could not make any valid orders he relied on the following decisions to show that the plea of nullity of an order of court can be raised at any stage in any forum.(1) kiran singh v. chaman paswan, : [1955]1scr117 . (2) govindasamy pillai v. srinivasa chettiar, : air1969mad172 .(3) sp.rn n.rm. ramaswamy chettiar v. alamelu achi, 88 lw 160.(4) sushil kumar mehta v. gobind ram bohra, : (1990)1scc193 .none of these cases referred to above would apply to the facts of the present case. in all those cases, the court had no inherent jurisdiction. it was held that consent could not confer jurisdiction on the court. learned counsel also placed reliance on the jugdment in shukla v. brij bhushan, air 1982 delhi 223 and shakunthala v. mahesh, : air1989bom353 , for the purpose. those cases will not also apply to the facts of the present case.10. in the present case, the question of jurisdiction of the court had to depend upon certain basic facts. under section 27 of the act, if the property is a common property belonging to both the husband and the wife, the court will have jurisdiction to make provisions with regard to the same in the decree. in this case, the only pleading and evidence available before the court was that the property was common property. on that footing, the court had jurisdiction to give directions with regard to that property. it is not open to the petitioner to raise the question of jurisdiction in a revision against an order of the executing court when the same depends upon certain basic facts, without disputing the facts at the trial stage.11. learned counsel placed reliance on a judgment of the high court of jammu and kashmir in sardar surinder singh v. manjeet kaur . in that case, a question was raised in the appeal filed against the order of the court of first instance. certainly, the petitioner could have well filed an appeal against the order of the principal subordinate judge in the main o.p. and challenged the correctness of the same. instead of doing so, the petitioner is raising a question for the first time in the revisional court at the stage of execution and he cannot do so.12. it should also be noted that the petitioner had filed a counter in the execution petition. in that counter, the petitioner did not raise the question of jurisdiction. nor did he contend in the counter that the property set out in the schedule to the main o.p. was not common property and section 27 of the act was not applicable thereto. it is only after hearing him, the court passed an order directing him to return the jewels. though originally by mistake an order for payment was made on 23-3-1989, it was rectified on 21-4-1989 and a correct order was passed. the petitioner has not chosen to challenge either of the orders dated 23-3-1989 or 21-4-1989. hence, it is not open to the petitioner to challenge the present order, which has been passed only as a consequence to his default in complying with the direction contained in the earlier order. it is not open to the petitioner to raise the new plea of fact in this revision.13. the next contention raised by learned counsel is that the principal subordinate judge has not made any enquiry in the original petition as to whether the property is a common property and rendered a specific finding with regard to the same. as no issue was there, there was no necessity at all for the principal subordinate judge to make such an enquiry learned counsel placed reliance on the judgment of a full bench of this court in jaldu venkatasubba rao v. the asiatic steam navigation company of calcutta, (1912) ilr 39 mad 1. in that case, the question was whether the suit could be regarded as a suit for return of a specific move-able property and whether it was filed under the provisions of section 11 of the specific relief act. while dealing with that question, the court observed that in view of the stringent methods provided in order xxi, rule 31, c.p.c., it is necessary in a suit, for recovery of specific movable property, for the plaintiff to allege and prove facts which entitles him to compel the delivery of specific moveables under the provisions of section 11 of the specific relief act. the question was raised in that case even in the trial stage. that was not raised for the first time in execution stage. moreover, in the present case, there is a specific pleading by the, 1st respondent in the main o.p. that the property was presented at the time of marriage for the purpose of common enjoyment by the husband and wife. the first respondent had given evidence in support of her claim and the court accepted the same in the absence of any pleading by the petitioner disputing the claim made by the 1st respondent. there is no doubt that the requirements prescribed by the full bench of this court, in the above decision, are satisfied in the present case.14. it is next argued by learned counsel that the specific provisions of law quoted in the execution petition are order 21, rules 35, 37 and 38 c.p.c. and the court is not entitled to pass an order under order 21, rule 31, c.p.c. the only relevant provision which is applicable to this case is rule 31 of order 21 c.p.c., which relates to a decree for specific movable property. rule 35 relates to decree for immovable property rules 37 and 38 relate to a decree for payment of money. it is a well-settled proposition that if parties quote a wrong provision of law, that would not prevent the court from applying the correct provision of law and pass orders. hence, this contention is without any substance.15. learned counsel submits that under rule 31 of order 21, c.p.c., the court ought to have made an enquiry as to whether the default on the part of the judgment-debtor is wilful and only after arriving at a finding on that question, the court should make an order for arrest. according to him, as the full bench of this court has observed in jaldu venkatasubba rao v. the asiatic steam navigation company of calcutta (supra), that the provisions of order 21, rule 35, c.p.c., were stringent, the court ought to have made an enquiry into the question whether the default on the part of the judgment-debtor is wilful. there is no provision to that effect in the section. rule 31(1) reads as follows : --'31. decree for specific moveable property: (1) where the decree is for any specific moveable, or for any share in a specific moveable, it may be executed by the seizure, if practicable, of the moveable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.' under the rule, there is no necessity for any enquiry as to whether the judgment debtor is wilfully evading compliance with the decree. once there is a decree for return of specific movable and that decree has not been complied with by the judgment debtor, the court is entitled to execute that decree by detention of the judgment-debtor in civil prison and by other methods also. in this case, the court has passed the order of arrest only after finding that the petitioner herein had not complied with its earlier directions.16. in the circumstances, there is absolutely no merit whatever in the civil revision petition. it has to suffer a dismissal and it is dismissed with costs. counsel's fee rs. 500.