Power of executing court?
saurav
(Querist) 11 February 2012
This query is : Resolved
Is there any circtmstance under which an executing court can refuse to execute a decree?
One circumstance which i think is the inherrent lack of jurisdiction as to subject matter.
V R SHROFF
(Expert) 11 February 2012
YES, if you apply for REGULAR DARKHAST [RD]TO EXECUTE A DECREE AT DIFFERENT JURISDICTION, court MAY REFUSE IT.
saurav
(Querist) 11 February 2012
I am not talking about lack of jurisdiction of executing court but of trial court which passed a decree having no jurisdiction.
V R SHROFF
(Expert) 11 February 2012
Then you appeal against such Decree passed without Jurisdiction.
Why Judgement Debtor/ Original Defendant did not object Jurisdiction in the first instance,
He thereby accepted the Jurisdiction of the Trial Court.
ajay sethi
(Expert) 11 February 2012
agree with mr shroff
Deepak Nair
(Expert) 11 February 2012
Yes. Rightly advised by Mr.Shroff.
Was the decree ex-parte??
prabhakar singh
(Expert) 11 February 2012
Mr. V R SHROFF HAS CORRECTLY OPINED.
Rajeev Kumar
(Expert) 11 February 2012
Mr.Shroff has opined well
saurav
(Querist) 11 February 2012
Does it mean parties can confer jurisdiction by not objecting at the first instance, where does not have it.
It is not an exparte decree, but after the decree the SC in one of judgement laid that such matter to be decided by tribunal not by court.
venkatesh Rao
(Expert) 11 February 2012
Even if you file execution petition in the same court which passed the decree, as far as your execution petition is concerned, it is executing court and not the court that decreed the suit.
Executing court cannot sit in appeal or revision over the decree which it is sought to execute.
Even the decree which is passed with lack of jurisdiction is binding with full force and effect to the parties. You may file an appeal against that decree and seek for stay of execution.
Any amount of consent or concurrence by parties will never confer any kind of jurisdiction.
Prabhakar Ji, Am I correct?
prabhakar singh
(Expert) 11 February 2012
Yes!
Mr.Rao has correct concepts in his mind.
An executing court can not go behind the decree is simple rule to be observed by executing court.
But if the error of jurisdiction is 'inherent'which vitiates the proceedings in Toto then it can be entertained at any stage,even at execution stage.
Devajyoti Barman
(Expert) 11 February 2012
Though executing court can not go beyond the decree , if the decree is obtained by exercise of fraud upon the court or the court has no competence to pass the decree it can surely adjudicate those issues.
prabhakar singh
(Expert) 12 February 2012
To make my point home i said earlier here is a reference:
Ledgard vs. Bull (1) (1886) L.R. 13A. 134. is an authority for the proposition that consent or waiver can cure defect of jurisdiction but cannot cure inherent lack of jurisdiction. In that case, the suit had been instituted in the Court of the Subordinate Judge, who was incompetent to try it. By consent of' the parties, the case was transferred to the Court of the, district Judge for convenience of trial. It was laid down by the Privy Council that as the Court in the suit had been originally instituted was entirely lacking in jurisdiction, in the sense that it was incompetent to try it, whatever happened subsequently was null and void because consent of parties could not operate to confer jurisdiction on a Court which was incompetent to try the suit.
Please do not say it old law as it has been
approved and followed by apex court till date.
http://indiankanoon.org/doc/262379/(Seth Hiralal Patni vs Sri Kali Nath on 4 May, 1961)
The following is a recent case by supreme court approving what i opined:(http://www.indiankanoon.org/doc/31020709/Mr.Narendra Kumar vs Mrs.Sumathi on 12 January, 2012)
Where it was held"12. Undoubtedly the Executing Court does not have jurisdiction to go behind the decree, unless, there was lack of inherent jurisdiction and the Executing Court cannot go behind the decree in cases of erroneous exercise of jurisdiction. The only remedy in cases of erroneous exercise of jurisdiction is to challenge the same by filing an appeal. The Executing Court cannot travel beyond the decree under execution and an erroneous decree cannot be said to be a nullity nor can a decree based on an error be a nullity. The Hon'ble Supreme Court in Urban Improvement Trust, Jodhpur v. Gokul Narain, AIR 1996 SC 1819 (1996 4 SCC 178), considered this very question and held as follows:-
15......a decree passed by a court without jurisdiction over the subject-matter or on any other ground which goes to the root of its exercise of jurisdiction or inherent jurisdiction, is a nullity. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. If the court has jurisdiction but there is any defect in its exercise of jurisdiction it does not go to the root of its authority. Such a defect like territorial jurisdiction could be waived by the party which could be corrected only by way of an appeal or revision. In that case it was held that since the decree was a nullity the validity was upheld in execution."
