SUNHERA Vs. HAR NARAIN (DECEASED) AND ORS

JUDGEMENT

(1.) The decree-holders-appellants got a preliminary decree for partition on November 30, 1959 and the final decree on July 11, 1960, which was maintained up to the High Court. The decree-holders carried out the execution of the said decree. The respondents raised objection inter alia on the grounds that they being the non-proprietor and Chamar Harjans as well as the residents of the village since the time of their forefathers, had become owners of the property in their possession and were interested in the result of the suit. According to them, a few proprietors obtained the decree for possession against them under Order l Rule 8, Code of Civil Procedure, (hereinafter called the Code). The provisions of Order 1 rule 8 of the Code had not been complied with and, thus, they had not been given notice of the suit and as such, the entire proceedings were vitiated. In the reply filed to the objections, the allegations made were controverted. It was inter alia pleaded that the objections had not locus standi to raise the objections as they were not the residents of the village from the time of their forefathers. It was also alleged that the suit had been hotly contested up to the High Court and that the provisions of Order 1 rule 8 of the Code, were duly complied with. On the pleadings of the parties, issues were framed and the parties were allowed to lead evidence. One of the main issues hotly contested was whether the decree for partition under execution was illegal and a nullity on the grounds alleged in paragraph 3 of the objection petition. The executing Court came to the conclusion that all the proprietors of the village in this case will be deemed to have been represented although they were not specifically named in the plaint or the notice under Order 1 rule 8 of the Code. The non-proprietors of the village were not sued in the partition suit and that they could not be deemed to be parties to the suit. They had also no right to file the objections under section 47 of the Code. At the most they had the right to bring a separate suit against the decree-holders. Ultimately, it was held that the executing Court could not go into the question of invalidity and the legality of the decree under execution, as alleged in the objection petition. Thus, the decree was held to be valid and a legal one. The other objections raised on behalf of the objectors were also negatived by the executing Court. In appeal, the only point raised on behalf of the objectors was that there had been non-compliance of Order 1 rule 8 of the Code which was mandatory in nature and, therefore, on that ground alone, the appeal merited acceptance. The learned Additional District Judge found that there was non-compliance of the provisions of Order 1 rule 8 of the Code in the suit filed on behalf of the decree-holders and, thus, the decree passed by the Civil Court was a nullity. Consequently, the appeal was allowed. The learned lower appellate Court did not set aside the impugned order alone but also the judgment and decree of the Civil Court and directed the Senior Subordinate Judge to carry out the proclamation under Order 1 rule 8 of the Code and to decide the case afresh. Dissatisfied with the same, the decree-holders have filed this second appeal in this Court.

(2.) The learned counsel for the appellants, contended that the executing Court had no jurisdiction to go behind the decree as to hold that there was no compliance of Order 1 rule 8 of the Code. In support to the contention, the learned counsel relied upon Hira Lal Patni v. Sri Kali Nath, 1962 AIR(SC) 199; V. D. Modi v. R. A. Rehman, 1970 AIR(SC) 1475; Ram Sarup v. Food Corporation of India, 1979 PunLJ 98 and Sharam Singh v. Union of India,1979 PunLJ 260. It was further contended by the learned counsel that from the file of the trial Court in the suit, it was amply proved that there was the order dated April 7, 1948, directing the issuance of the notice under Order 1 rule 8 of the Code and that there was an office-note to the effect that the said order had been complied with. Not only that, many people came forward after the issuance of the said notice which was itself evidence to show that necessary proclamation was made in the village. In any case, argued the learned counsel, there is always presumption under section 114(e) and (f) of the Indian Evidence Act, that all judicial and official acts have been regularly performed and that the common course of business has been followed in particular cases. In support of this contention, the learned counsel relied upon Piara Ram v. Sohawa, 1928 AIR(Lah) 910; Jitendra Nath v. Manmohan Ghose, 1930 AIR(PC) 193 and Ahad Najar v. Ram Chand,1965 AIR(J&K) 31. The learned counsel also contended that in any case under no circumstances the decree could be set aside in toto. The persons who were parties to the decree and were present before the Court were bound by the same. In support of this contention, the learned counsel relied upon Kumaravelu v. Ramaswami, 1933 AIR(PC) 183 and Jai Narain v. Chandgi Ram,1977 PunLJ 525. The authorities relied upon by the lower appellate Court were distinguished on the ground that therein the points were raised in appeal against the original decrees in the suits and not against the orders passed in the execution proceedings. On the other hand, no meaningful argument could be raised on behalf of the respondent. The only reference made on their behalf was to Jai Narain's case .

(3.) After hearing the learned counsel for the parties, I find force in the contentions raised on behalf of the appellants.