SREEDHARA PAI Vs. VELAYUDHAN KUNJAN GOVINDAN

JUDGEMENT

(1.) First defendant has preferred this appeal against the lower court's order dismissing his objections to the execution petition No. 56, dated 18th Vrischigam 1121 filed by the decree holders. In the lower court's order it is stated that when the 1st defendant's objection came on for hearing two points alone were pressed on his behalf and accordingly the lower court has considered those two objections only. We do not see any reason to doubt the correctness of the fact as stated by the lower court and hence we propose to deal only with the two points which were pressed by the first defendant in the lower court.

(2.) The first and the most important objection raised by the first defendants appellant is that the decree in the case is a nullity and that as such it should not be allowed to be executed. Plaintiff's suit was for recovery of money due to them under a chitty hypothecation bond which had been executed by the first defendant in respect of the plaint items. The decree in the case was passed in accordance with the terms of the compromise petition filed by the parties. Plaintiffs have taken out execution for recovery of the lump amount as stipulated in the decree on the ground that the first defendant has committed default in the due payment of the instalment. The first defendant now contends that item No. 2 in the decree is Kandukrishi land and that the suit could not be entertained without the required Government sanction. S. 8 of the Travancore Civil Procedure Code (Act VIII of 1100) insists on the production of such sanction in respect of suits relating to Kandukrishi lands. The section lays down that no civil court shall take cognisance of any suit relating to Kandukrishi lands unless the plaint is accompanied by an order of Government permitting the plaintiff to seek redress in a civil court. The plaintiffs had no case that such sanction had been produced in the present case. The question therefore is whether for reason of the non production of the required Goverment sanction the compromise decree passed in the case can be said to be a nullity. The non production of the Government sanction can at the worst affect the decree as against item No. 2 only. The decree as against the other items and the first defendant, would even then remain valid and it could be enforced. Regarding that portion of the decree the first defendant's objection is clearly unsustainable.

(3.) Normally the executing court cannot go into the validity of the decree, but has to take the decree as it is and enforce it. This is particularly so when the decree is one which was passed on the consent of the parties. But this rule is subject to one exception. Where it is shown that the decree is a mere nullity in so far as it was passed by a court having no jurisdiction to pass such a decree, the executing court can refuse to enforce it. In the present case the sanction required by S. 8, Civil Procedure Code was not before court when it passed the decree against the plaint items including Kandukrishi lands. Can it be said that there was a total absence of jurisdiction to the court to pass such a decree S. 8, Civil Procedure Code, prima facie indicates that the court would get jurisdiction to entertain a suit in respect of Kandukrishi lands only when the required sanction is produced. But in construing the scope of this section it has been ruled in a series of cases that the sanction insisted on in S. 8, Civil Procedure Code, is only intended to protect the rights and interests of the Crown in respect of Kandukrishi lands and that though a decree passed without such sanction will not bind the Crown it will be valid as between the parties to it. In Mohamed Kunju v. Asan Sahib 18 T.L.R. 157 the validity of a court sale of Kandukrishi lands held in execution of a decree which had been passed without the required Government sanction, came up for consideration and it was held that if the lands sold are really Crown lands, the proceedings taken will not bind the Crown, though as between the parties to the decree such proceedings have to be accepted as valid. In Perumal Joshua v. Krishna Pillai Kauli Pillai 33 T.L.R. 240 it was ruled by a Full Bench that the rights of a tenant of Kandukrishi land to the improvements effected by him on such land are attachable and saleable in execution of a decree against such tenant and S. 7(a) of the Civil Procedure Code (corresponding to present S. 8) is no bar to such attachment and sale and that this section does not apply to execution proceedings. The decision in Rajangam Iyer v. Umbichi Aiysha Veevi 43 T.L.R. 466 is also to the same effect and it was ruled there that a vesting order under S.16 of the Insolvency Act could be passed in respect of Kandukrishi lands in the possession of the insolvent even without obtaining any sanction from the Government. The view consistently taken in all these cases is that the effect of S. 8 of the Civil Procedure Code (S. 7(a) of the prior Code) is not completely to oust the jurisdiction of the court to deal with the interests of the tenant of the Kandukrishi land in respect of such lands. In Madhavan Pillai v. John 1947 T.L.R. 551 it was ruled that the prohibition under S. 8, Civil Procedure Code, cannot be invoked after the decree has been passed. It was further ruled that the decree passed is not without jurisdiction so as to make it a nullity and that as between the parties to the decree it can be enforced. We see no justification for deviating from such a view taken in a long current of decisions, and hence we accept the principle underlying these rulings and uphold the finding of the lower court that the decree in this case cannot be ignored and treated as a nullity even in respect of item No. 2. All the same it cannot be said that the first defendant's objection to the execution of the decree against item No. 2 is unstenable. S. 8 of the Civil Procedure Code as it stands amended by Act XXV of 1121, governs this proceedings also. In thus amending the section the point raised in the earlier rulings already referred to that the section as it stood was no bar to execution proceedings being taken against Kandukrishi lands, has been met by the legislature. The amended section reads as follows:-