JUDGEMENT SUMMARY: Nagammal v. The Senior Divisional Perosnnel
DATE OF JUDGEMENT: August 21, 2019
JUDGES: Hon’ble Mr. Justice S.S. Sundar
REFERENCE: C.R.P(PD)(MD) No. 1083 of 2011
Civil Revision Petition filed under Section 115 of the Civil Procedure Code, 1998, praying to set aside the order of dismissal of execution petition dated 04.02.2011 by the learned District Munsif, Tiruchiappalli, made in E.P. No. 491 of 2010 in O.S. No. 56 of 2001.
1. The revision petitioner filed a suit in O.S.No.56 of 2001 for a declaration that she is entitled to the family pension upon the death of her husband Late Sri.Ranganathan. The suit in O.S.No.56 of 2001 was decreed ex parte and the defendant in the suit was directed to disburse the family pension to the revision petitioner as prayed for in the suit. Thereafter, the revision petitioner filed Execution Petition in E.P.No.491 of 2010 before the executing Court. Before the Executing Court, the judgment debtor contended that the revision petitioner is the second wife of Late Sri Ranganathan and that she is not entitled to the relief when the first wife is alive. Recording the objection, the Executing Court dismissed the execution petition.
2. Strangely, though the status of the revision petitioner as second wife was accepted by the Executing Court, it proceeded on the basis that the revision petitioner has not proved that she was married to the deceased Ranganathan and that there are no other children born to Sri.Ranganathanthrough his first wife. The question whether the first wife is alive or not was not also raised as a ground to question the decree in O.S.No.56 of 2001 or its executability. Aggrieved by dismissal of Execution Petition, the present Civil Revision Petition is filed.
· Section 115: Section 115 of the Code deals with the revisional jurisdiction of the High Court. It provides that the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears:
a) to have exercised jurisdiction not vested in it by law, or
b) to have failed to exercise a jurisdiction so vested. or
c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
· Section 15: Every suit shall be instituted in the Court of the lowest grade competent to try it.
· Section 21: [(1)] No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.
[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]
· Section 47:(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
1[* * * *]
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
2[Explanation I.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.-(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]
· Rule 46(A):(1) The Court may in the case of a debt (other than a debt secured by a mortgage or a charge) which has been attached under rule 46, upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt, calling upon him either to pay into Court the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show cause why he should not do so.
· (2) An application under sub-rule (l) shall be made on affidavit verifying the facts alleged and stating that in the belief of the deponent, the garnishee is indebted to the judgment-debtor.
· (3) Where the garnishee pays in the Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of the execution, the Court may direct that the amount may be paid to the decree-holder towards satisfaction of the decree and costs of the execution.
· SSection 151: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
This Court considered the facts and circumstances of the case and the arguments of the learned Counsel appearing on either side.o:p>
First of all, the status of the petitioner, as the second wife of the deceased Ranganathan, is not in dispute. The suit filed by the revision petitioner is for mandatory injunction and the same was decreed as prayed for. The decree as against the defendant in the suit has become final and no one has challenged. In such circumstances, the Executing Court cannot go beyond the decree unless the judgment debtor raise an issue with regard to the competency of the Civil Court granting decree or about the executability of the decree, in the manner as it was decreed earlier. In the absence of any issue with regard to the jurisdiction or competency of the Civil Court to pass a decree in the suit, the executability of the decree cannot be pressed into service in the execution petition. The judgment debtor have not filed any application under Section 47 of C.P.C. In such circumstances, the Executing Court has committed an error of jurisdiction by dismissing the execution petition filed under Section 21, Rule 46 read with Section 151 C.P.C.
The learned Counsel appearing for the revision petitioner relied upon a judgment of this Court dated 12.09.2018 in the case of S.Muthu Narayanan and others v. Paulraj Naicker [C.R.P. (NPD) (MD)No.885 of 2013] wherein this Court has considered the scope of Section 47 C.P.C. Relying upon the decision of the Hon'ble Supreme Court, this Court has observed that the Court having jurisdiction over the subject matter cannot treat the decree as nullity and ignore the same in subsequent litigation even if the suit is barred by limitation. It has been specifically observed by the Hon'ble Supreme Court in catena of cases that an error of law in a judgment can be corrected only in the manner laid down under the Code of Civil Procedure and that the party to the litigation cannot challenge the decree on the ground that the judgment is a nullity, in the subsequent proceedings.
AAs a result, this Civil Revision Petition is allowed and the matter is remitted back to the executing Court for passing appropriate orders on merits and in accordance with law. Such exercise shall be undertaken by the learned First Additional District Munsif Court, Tiruchirappalli, within a period of eight weeks from the date of receipt of a copy of the order. The Registry is directed to send the records as expeditiously as possible preferably within a period of two weeks from the date when copy of this order is made ready. No costs. Consequently, the connected miscellaneous petition is closed.
The Court had taken the decision in a wise manner. However, as mentioned earlier, the status of the first wife should have been a bit clearer. Until the status was clear, the court should not have moved forward.