ALI HAJI Vs. ALIMA

JUDGEMENT

(1.) The decree holder is the revision petitioner. He obtained a decree for mandatory injunction directing the judgment debtor to vacate the plaint schedule property and a prohibitory injunction restraining her from entering the property thereafter. The judgment debtor was the wife of the decree holder. According to the decree holder the marriage was dissolved on 19.2.1991 and that aspect is not in dispute at this stage. The decree for mandatory injunction was put in execution by the decree holder. The judgment debtor raised a contention that the decree was void and consequently the executing court could not execute the decree. This contention was overruled by the executing court by its order dated 30.5.1996. But in C.R.P. 1002 of 1996 filed by the . judgment debtor this court set aside the order of the executing court essentially on the ground that the question raised by the judgment debtor had not been properly considered by the executing court and remanded the execution petition to the executing court for reconsideration of the question of want of jurisdiction vitiating the decree raised by the judgment debtor. Thereafter by order dated 17.8.1996 the executing court held that the decree was a nullity and consequently refused to execute the decree. The decree holder has filed this revision challenging that decision.

(2.) Now to the developments leading upto the decree. The Family Courts Act, 1984, hereinafter called the Act, was enacted on 14.9.1984. It was extended to the State of Kerala by Notification dated 17.10.1989. The appointed day for the commencement of the Act was 21.10.1989. The suit was filed by the decree holder against his former wife on 27.7.1991, in the ordinary civil court namely Subordinate Judge's Court of Trichur. By a Notification dated 6.6.1992 and published in the Gazette the same day a Family Court at Ernakulam was established with the area of jurisdiction as Revenue Districts of Ernakulam and Trichur. The suit was decreed by the civil court namely Subordinate Judge's Court, Trichur on 3.7.1992. A Notification dated 1.6.1992 but published only on 7.7.1992 in Kerala Gazette No. 27 was issued appointing an Officer, a Retired District Judge as the Judge of Family Court Ernakulam with local limits of jurisdiction extending to the Revenue Districts of Ernakulam and Trichur. It is said that the Family Court at Ernakulam started functioning on 15.6.1992. It is not very clear how this could be done when the Notification naming the Presiding Officer of the Court was published only on 7.7.1992. After the suit was decreed, the decree holder filed the present execution petition E.P. 170 of 1993. The judgment debtor, meanwhile, filed an appeal against the decree before the District Court Trichur as A.S.201 of 1992. That appeal was dismissed on 11.2.1993. The execution petition was presumably kept stayed. The judgment debtor filed S. A. 195 of 1993 before this court. That Second Appeal was dismissed on 14.8.1995. The judgment debtor filed a petition for Special Leave to appeal before the Supreme Court S.L.P. No. 23872 of 1995. The Supreme Court dismissed that petition for Special Leave by order dated 6.11.1995. It is thereafter that the judgment debtor filed an objection to the execution petition. That was on 6.12.1995. It was contended that the Family Court had come into existence on 6.6.1992 and in view of that, the decree was void and was a nullity. The objection, as earlier stated, was originally overruled by the executing court but after remand by this court, was upheld by order dt. 17.8.1996. The question is whether the decree passed by the Civil Court on 3.7.1992 is a nullity, whether it is open to the judgment debtor to raise this contention to view of the decree in A.S.201 of 1992 and S. A. 195 of 1993 rendered subsequent to the extension of the Act and thirdly whether the objection raised by the judgment debtor is available to be raised in the executing court in that the objection to jurisdiction is apparent on the face of the decree.

(3.) According to the Full Bench of this Court in R.K.V. Motors and Timbers v. R.T.O. ( 1982 KLT 166 ) a Rule notified comes into force only on release of the Kerala Gazette containing the Notification bringing the Rule into force is released to the public. In this case, though the Notification naming the Presiding Officer is dated 1.6.1992 it was only published in Kerala Gazette No. 27 dated 7.7.1992. Going by the ratio of the decision of the Full Bench therefore, the earliest day when the said notification could be deemed to have come into force is 7.7.1992 though it is quite possible that the Notification itself was released to the public only after 7.7.1992. For the purpose of this case that aspect has not much relevance. Similarly, the constitution of the Court was published in the Gazette Extra ordinary No. 679 dated 6.6.1992. Obviously, it might have been available only on the release of the Gazette, the date of which is not clear. In Harla v. State of Rajasthan ( AIR 1951 SC 467 ) the Supreme Court has stated that a law must be promulgated or published before people can be penalised thereunder. A court could be taken to be constituted only when the things required by the constitution for the existence of a court concur and a court cannot exist without a Judge. In the decision in Supreme Court Legal Aid Committee v. State of India ( 1994 (6) SCC 731 ) while considering the question as to when can it be said that a court is constituted, their Lordships stated:-