MANNULAL Vs. JHADURAM

JUDGEMENT

(1.) Short question for determination in this petition under Article 227 of the Constitution of India is when in a suit filed by the plaintiff concerning land where the State Govt. has not been joined therein as a party as required under Order 1 Rule 3B of the Code of Civil Procedure, 1908 (in short 'the Code') and a decree is ultimately passed therein, such decree is nonest and void and executing Court has jurisdiction to refuse to execute the decree on this ground. Concededly petitioner preferred civil suit No. 79A/1990 in the Court of Civil Judge Class-2, Janjgir. Said suit was decided exparte and judgment and decree was passed on 18/1/91 partly allowing the suit concerning Khasra No. 3026 village Baloda area 361/2 x 111/2 sq. ft. It was directed that defendant shall remove the hut constructed thereon and shall hand over vacant possession of the suit land to the plaintiff. When this decree was sought to be executed judgment debtors raised objection on the ground that the suit wrongly proceeded without joining the State Govt. therefore, execution proceedings deserves to be dropped. Executing Court has allowed the said objection and has recorded a finding that the decree passed is a nullity and the execution should not be proceeded.

(2.) Order-1 Rule 3B of the Code of Civil Procedure, 1908 as amended in the State of Madhya Pradesh (now C.G.) makes the following provisions:-

(3.) In the matter of Brijrajsingh and others Vs. Bitto Devi (Smt.) and another, 1994 MPLJ 192; Gaya Prasad (dead) through LRs. Vs. Banmali, 2005 5 MPHT 41; Ramsingh Nihal Singh Rajput Vs. Gulab Rani wd/o Babulal and others, 2001 1 MPLJ 702; and Babulal Vs. M/s Hazari Lal Kishori Lal and others, 1982 AIR(SC) 818 it has been held that a decree passed without joining the State is not a nullity and non compliance with the provisions contained in Order 1 Rule 3-B of C.P.C. as amended in M.P. (now Chhattisgarh) does not create any jurisdictional incompetence in the Court hearing the suit or appeal solely on account of non compliance therewith. In view of the above legal position the executing Court could not have refused to execute the decree on the ground that judgment ad decree is void.