NIKHIL DEBNATH Vs. PRANAB KUMAR SAHA

JUDGEMENT

(1.) Heard Mr. Kushal Deb, learned counsel appearing for the petitioner-judgment debtor and Mr. Pranabashis Majumder, learned counsel appearing for the respondent-decree holder.

(2.) Petition under Sec. 47 of the Code of Civil Procedure, 1908 (CPC, for short) by the judgment debtor in C.M. (J) No.45 of 2022 arising out of Execution (M) No.01 of 2020 has been rejected by the impugned order dtd. 9/4/2024 by the Executing Court of learned Civil Judge (Sr. Division), Court No.2, West Tripura, Agartala. Judgment debtor/petitioner herein had questioned the jurisdiction of the learned trial Court in passing the judgment and decree as the subject matter of the case fell under Commercial Courts Act, 2015. As such, the learned trial Court lacked jurisdiction on the principle of coram non judice. Since the question of jurisdiction goes to the root of the matter and if the judgment and decree is a nullity in the eye of law, it could be raised at any stage including the stage of execution under Sec. 47 of the CPC. In support of this plea, learned counsel for the petitioner had referred to the case of Sarwan Kumar & another vrs. Madan Lal Aggarwal reported in AIR 2003 SC 1475 and M/s. National Highway Authority of India vrs. M/s. B. Seenaiah & Company (Projects) Ltd. [F.M.A. No.254 of 2012 of Calcutta High Court].

(3.) The opposite party/decree holder filed a written objection thereto. It took a plea that the learned Executing Court cannot go beyond the decree in an application under Sec. 47 of the CPC. It was further pointed out by the decree holder/respondent herein that the original judgment and decree was passed ex parte on 21/11/2019 in M.S. No.12 of 2019. The MFA No.03 of 2022 instituted against it was also dismissed by order dtd. 30/9/2022 by this Court as the connected condonation application was dismissed. The learned trial Court upon consideration of the rival submission of the parties rejected the prayer in the following manner:-