KALEEM ULLAH KHAN Vs. JAGDISH SARAN

JUDGEMENT

(1.) This is a decree-holder second appeal which arise out of proceedings for execution of decree in suit No. 63 of 1969 of the Court of Munsif, Amroha. The suit was for recovery of Rs. 1,100/- on account of damages in the sum of Rs. 400/- and refund of Rs. 700/- paid in advance in respect of contract for sale of the right to collect the fruits of the defendant's grove in the years 1968-69. The suit was filed on 24th January 1969 in the Court of Munsif. It was decreed by that Court on 19th February 1972 for the recovery of Rs. 1,100/-as claimed by ths plaintiff- decree-holder with costs. The decree passed,by that Court does not appear to have been appealed from but it was put into execution and objection purporting to be under Section 47 of the Code of Civil Procedure was filed on the 30th November, 1972, objecting to the execution of the decree on the ground among others tint on the date when the decree was passed viz, 19th February 1972, the Court of Munsif, Amroha, did not have the jurisdiction to decree the suit, such jurisdiction being vested only in the Court of Judge, Small Causes, Moradabad and that, therefore the decree was an absolute nullity and incapable of execution. Further grounds were raised in support of the said objection by an application for amendm no of the objection under Section 47 of the Code of Civil Procedure. The decree-holder filed an objection. The learned Munsif summarily rejected the application for amendment of the objection under Section 47 of the Code of Civil Pro cedure but at the same time allowed the objection holding that the decree was ab initio void inasmuch as the suit ought to have been filed in the Court of, and should have been decided by the Court of, Judge Small Causes, Moradabad and the Court of the Munsif, Amroha had no jurisdiction to try the suit. The decree-holder's appeal from the order allowing the judgment-debtor's objection was heard by the Court of the Judge Small Causes Moradabad. In exercise of its jurisdiction as an Additional Civil Judge. The appeal was dismissed on the ground that although the date on which the suit was filed, the Court of Munsif Amroha had jurisdiction to entertain it but the jurisdic tion of that Court was divested by the conferment of the powers to try small cause suit of a valuation upto Rs. 2000/- on the Court of the Judge Small Causes Moradabad during the pendency of the suit by the amendments made in sub-sections (2) and (3) of Section 154 of the provincial Small Causes Courts Act by U. P. Act No. 14 of 1970 and the amendments being procedural, they were retrospective in effect, in the absence of any saving clause to the contrary in the said Amendment Act. A perusal of the record shows that an application was filed by the decree-holder before the lower appellate Court on 13th July 1973, along with a certified copy of the judgment dated 19th February 1972 in the suit, on which the decree under execution was founded inviting the attention of the Court that an objection had been taken in the course of the trial to the jurisdiction of the Court of the Munsif, Amroha to try the suit on the ground that the suit was cognizable by the Court of Judge Small Causes Moradabad and that objection having been overruled in the judgment which had become final, the same objection could not be raised in the execution proceedings. A perusal of that judgment shows that the very first issue raised at the trial of the suit was whether the suit is triable by small cause Court and that issue was answered in the negative on the ground that the suit had been instituted on the 24th January 1969 before the conferment of the jurisdiction to try small cause suits valued at above Rs. 1000/- upto Rs. 2000/- on 22nd September 1969. The lower appellate Court does not appear to have taken any notice of this fact. The order of the learned Munsit allowing the objection under Section 47 of the Code of Civil Procedure does not give any reasons for his view that the Court of Munsif, Amroha had no jurisdiction or that the suit should have been filed in and decided by the Court of Judge small causes Court Moradabad. Learned counsel for the dccree-holder-appellant was rather critical of the short-shrift made by the two Courts below of the decree passed in his favour. He urged that the validity of the decree passed by the Court of the Munsif, Amroha could not be questioned by the debtor in this case. He relied on the decision of a Full Bench of the Madhya Pradesh High Court in Bhaiyalal Girdha-rilal Srivastava v. Tikaram Udaichandra Jain (AIR. 1970 M. P. 237), wherein it was ruled that even where a suit of small cause nature is instituted and tried as a regular suit in contravention of Section 16 of the provincial Small Cause Court's Act, the judgment so rendered is not without jurisdiction and, therefore not a nullity. The earlier view to the contrary of a Division Bench of that Court in Jagannath v. Harisingh (A. I. R. 1969 M. P. 56), and Poonam Chand v. Ram Prasadi (A. I. R. 1969 M. P. 44), was overruled. In support of his submission learned counsel for the decree-holder-appellant also invited my attention to the Full Bench decision of this Court in Manzurul Haq and another v. Hakim Mohsin All (A. I. R. 1970 All. 604), wherein the earlier Division Bench view of the Madhya Pradesh High Court in Jagannath v. Harisingh (supra), was dissented from and it was held that the Court of small cause is a Court of preferential jurisdiction and not a Court of exclusive jurisdiction. My atten tion was further invited by the learned counsel for the appellant to five Judge (Full Bench) decision of this Court in Bisheshwar Prasad Gautam v. R. K. Agrawal, (1976 A. I. R. 324 ). The fact in the case were that the suit being a suit for ejectment and arrears of rent etc. valued at less than Rs. 2000/- was filed in the Court of Munsif, Allahabad but before the recording of evidence could begin in that suit the U. P. Civil Law's Amendment Act 1972 came into force on account of which, the suit became triable by the Court of the Judge Small Causes Court as a Small Cause suit and was required to be transferred under Section 9 of the Amendment Act to the Court of small cause. But no objection was taken to the further trial of the suit by the Munsif's Court and it was heard and decreed by that Court. An appeal therefrom was dismissed by the district Court. On second appeal to this Court an objection was raised that the suit was of a small cause nature and that, therefore no second appeal lay on account of the provisions of Section 102 of the Code of Civil Procedure. The Full Bench held that the second appeal was incompetent. A request was thereupon made fof permission to convert the second appeal into a Civil revision. That request was refused on the ground that the objection to the jurisdiction was not taken before the trial Court for if that had been dona the trial Court would have immediately transferred the case to the small cause Court; that the defendant had voluntarily submitted to th. 2 trial of the suit on the merits: and that the procedure of the trial being more detailed it could not be said that he was in any manner prejudiced, and refused permission to convert the second appeal into a revision. Learned counsel for the appellant submitted that if the Full Bench had been of the view that the decree passed was a nullity it would not have refused to permit the appellant before it to convert the second appeal into a revision Be that as it may, so far as the present case is concerned, the decision of the Full Bench of the Madhya Pradesh High Court, in Bhaiyalal's case (supra), and in Manzrul Haq's case (supra), has held that the Court of small causes is not a Court of exclusive jurisdiction but a Court of a preferential jurisdiction, it cannot be said that the decree passed by the Court of Munsif, Amroha, in the present case was a nullity for having been passed by a Court having no jurisdiction in respect of the subject-matter of the suit. I need not repeat the reasons given by Naik, J. of the Madhya Pradesh High Court in support of that view. There is the further fact in the present case that the question of jurisdiction has already been heard and decided by the Court of Munsif, Amroha during the course of the trial. That decision, whether right or wrong is binding on the parties in all subsequent stages of the suit including execution proceedings (See Satyadhyan Ghoshal and others v. Smt. Deorajin Debi, (A. I. R. 1960 S. C. 941 ). Learned counsel for the judgment-debtor relied on Kiran Singh v. Chaman Paswna and others, ( A. I. R. 1954 S. C. 340) It was held in that case that it is a fundamental principle well established that a decree passed by a Civil Court without jurisdiction is a nullity and that its invalidity could be set-up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. The rule is of no help to the judgment-debtor in the present case inasmuch as firstly that the Court of Munsif, Amroha did not lack juris diction to hear and decide the suit, and secondly that question having been raised and decided by that Court at the trial it cannot be re-agitated iu execu tion proceedings. Learned counsel for the decree-holder-appellant also relied on a decision of a learned Single Judge of this Court in Shri Mohd. Miyan v. Civil Judge Saharanpur and another, (1979 A. C. J. 114 ). It fully supports the decree-holder's case. It is decisive in his favour. In the result, the appeal succeeds and is allowed. The decree under appeal is set aside. The judgment- debtor's objection to the executability of the decree on the ground of want of jurisdiction in the Court which passed the decree is overruled. However, since that was not the only point raised in the judgment-debtor's objection dated 30th November 1972 the execution Court shall proceed with the execution of the decree after hearing and disposing of the other points, if they are now pressed in the judgment-debtor's objection in accordance with law. The decree-holder-appeliant shall be entitled to his costs throughout. .