KRISHNAN Vs. CHERIYA MOIDEENKUTTY

JUDGEMENT

(1.) This second appeal is in a proceeding under S.144, C.P.C The suit was for recovery of land with arrears of rent. It was decreed by the court of trial and that was affirmed by the first appellate Court. The plaintiffs recovered the property in execution on March 20, 1955. Thereafter in second appeal, the decree, so far as recovery of property was concerned, was reversed by this court on May 30, 1961. The defendants filed R.E.P. 265 of 1962 for redelivery of the property to them under S.144 C.P.C. It was dismissed by the Munsiff on January 31, 1963. The defendants appealed in A. S. No. 51 of 1963, against the order, impleading the 1st plaintiff alone as respondent thereto. On February 6, 1965, the District Judge set aside the dismissal and remitted the application for fresh disposal under Act 1 of 1964. After remit, on June 2, 1965, the two plaintiffs jointly filed a counter to the application and opposed the motion for redelivery. The Munsiff ordered redelivery and the same has been upheld by the District Judge. Hence this second appeal by the 2nd plaintiff.

(2.) Counsel contended that as the 2nd plaintiff had not been made a party to A. S. No. 51 of 1963 the dismissal of the application for redelivery by the executing Court on January 31, 1963, had become final and conclusive as concerned the 2nd plaintiff who had taken delivery of the property as the karnavan of his illom. Since he had not been made a party to the appeal, the order of remit made therein by the District Court might not bind him, but when, pursuant to the remit, the Munsiff retried the motion for restitution, the appellant had entered appearance before him, and participated in the trial by objecting the motion (Vide the counter dated June 2, 1965). He who appeared in a judicial proceeding and courted a decision thereon, cannot say that the proceedings do not bind him unless the Court had not inherent jurisdiction in the cause tried; and even if the proceeding was a second trial in ignorance of a prior adjudication on a matter between the same parties, the later decision will supersede the earlier one. It must follow that the order dated October 6, 1965, of the Munsiff allowing redelivery cannot be said to be not binding on the appellant.

(3.) Counsel contended that the reversal by the High Court of the decree for recovery passed by the Court below was on account of the Act IV of 1961, which had been subsequently struck down as unconstitutional and was therefore non est in the eye of law and that therefore the High Court decree was void. I see no force in this contention. Irrespective of its merits, the decree of the High Court passed in second appeal does supersede the decree passed by the Court below. However wrong the reason that led to the decree may be, the decree cannot be said to be without jurisdiction. It may, at the worst, be a wrong decree or even an illegal decree, and yet is binding on the parties, unless set aside in manner prescribed by law. The force of a decree cannot be canvassed on its merits or demerits. If the Court had jurisdiction in the cause and over the parties its decree cannot be assailed as lacking in jurisdiction particularly on ground of error in law. The decree of the High Court passed on May 30, 1961, in the suit cannot therefore be avoided, overlooked or ignored by a party thereto as wrong and therefore void. It follows that the subsisting decree in the case is the one passed in second appeal and that being in reversal of the decree executed the defendants are entitled to restitution under S.144, C.P.C. As the Supreme Court has held "an application for restitution is an application for execution of a decree" ( AIR 1965 SC 1477 Para.30) the present motion for redelivery comes within the scope of S.132(1) of the Act I of 1964 and has therefore to be decided in accordance with the provisions of that Act. The 2nd plaintiff (appellant herein) has claimed, a right to resume and therefore to retain the land, or a part of it, as a "small holder" under S.17 of the Act, but the plea has not been adjudicated by the Courts below. It is pointed out by counsel for the respondents defendants that under S.17, the maximum extent that the appellant could claim to resume is 4 acres only; but the property involved in this proceeding is of a much larger area and by counsel for appellant that he might claim a larger area under S.16 of the Act.