RVISWANATHAN Vs. SABDUL WAJID

JUDGEMENT

(1.) These two appeals arise out of the order passed on I. A. No. IV in Ex. Cases Nos. 106 and 107 of 49-50 on the file of the District Judge, Civil Station, Bangalore. The amounts claimed in the execution petitions represent costs awarded to the defendants in the proceedings culminating in the regular appeals of this Court. The objections of the judgment-debtors contained in I. A. No. 1 characterise the decrees under execution as a nullity on the ground of their having been passed by a tribunal, two of the Judges of which were not competent to hear the appeals and as such the decrees are wholly void, without jurisdiction and unenforceable. The trial Court overruled the objections on 19-12-1949 and directed execution to proceed. On 22-2-1950, the judgment-debtors filed the application, for review, under consideration (I. A. No. IV) in both the cases under Section 151 and Order 47, Rule 1 of the Civil Procedure Code. The grounds urged in the said petition may be outlined as follows. This Court i.e. the executing Court rejected the application (I. A. No. 1) of the judgment-debtors on 19-12-1949 without hearing the Counsel and without a considered order which is an appealable one and that the question regarding the validity of the decree is a very important one depending upon the competency and the constitution of the Tribunal. The judgment-debtors prayed that the Court may be pleased to review the order overruling the objections and to pass a considered order alter hearing the Counsel. The learned District Judge held that the executing Court could not review the order passed by itself on 19-12-1949, much less was it, competent to question the validity of the decree passed by the Full Bench of this Court.

(2.) The history of the litigation leading up to the execution petitions under consideration may briefly be outlined thus. The judgment-debtors as plaintiffs in the trial Court had obtained decrees against which R. A. No. 104 and R. A. No. 109 of 47-48 were filed in the High Court. The Division Bench that heard the appeals having differed in their opinions, the appeals were referred to a Full Bench on 2-4-1949 for disposal. One of the Judges that constituted the Division Bench was in the constitution of the Full Bench. The Full Bench allowed the appeals with costs. Thereupon the plaintiffs applied for review of the judgments of the High Court in C. Ps. Nos. 61, 62, 49 and 50 of 49-50 all of which were dismissed. The execution petitions from which the present appeals arise are for the recovery of the costs awarded to the defendants in the regular appeals of this Court.

(3.) Sri Raghavachariar, the learned Counsel for the appellants, raised two contentions: the first regarding the competency of the Judges composing the Full Bench and the next about validity of the constitution of the Full Bench and argued that the decrees under execution are void and unenforceable for either or both the reasons. In relation to the first contention, it was argued that the two out of the three Judges that composed the Full Bench were not competent to hear and dispose of the appeals, the incompetency consisting in this that one of them had dealt with a probate matter connected with the estate of the plaintiffs and that the other had expressed an opinion in the Division Bench. This question of incompetency had been raised during the course of arguments in the regular appeals and also in the review petitions dealt with by this Court. The learned Counsel for the appellants also admitted that this point was incidentally concerned in certain connected proceedings disposed of by the Supreme Court. The question about incompetency of the Judges was thus expressly or by implication rejected in all the proceedings before this Court as also the Supreme Court. Besides, the order dated 19-12-1949 of the learned District Judge, overruling the said objections is rendered conclusive as no appeals had been preferred therefrom. In any view of the matter, the said contention is untenable.