NIRANJAN LAL Vs. CHHOTEY LAL

JUDGEMENT

(1.) THIS civil revision is directed against the order of Mrs. Anita Chaudhry, Sub Judge IInd Class, Gurgaon, dated 2nd November, 1981, dismissing the application for execution of the decree by accepting the objection of Chhotey Lal judgment-debtor, to the effect that the decree having been passed by a Court having no pecuniary jurisdiction is a nullity in the eye of law.

(2.) IN brief, relevant facts for the disposal of this petition are that Niranjan Lal, plaintiff, filed a suit for possession of the disputed property against Chhotey Lal by evaluating it for the purposes of court-fee and jurisdiction at Rs. 5,000/-. The objection of defendant that the suit should have been evaluated at Rs. 40,000/- for these purposes was accepted by the trial Court, i.e. Sub Judge III Class, Gurgaon where the suit was pending. Ultimately, the suit was decreed on 27th March, 1981. The appeal filed by the defendant was dismissed by the District Judge on 18th August, 1981 in default. The decree-holder then filed an execution petition for delivery of possession of the disputed property, wherein the judgment-debtor filed objections under Section 47 read with Section 151 of the Code of Civil Procedure that the decree for 40,000/- passed by a Court having no pecuniary jurisdiction being nullity in the eye of law, was not executable. The decree-holder resisted the objection petition contending that it was not a nullity in the eye of law, because of the provisions of Section 21 of the Code of Civil Procedure read with Section 11 of the Suits Valuation Act, 1887 and it has not resulted in failure of justice.

(3.) THE learned counsel for the petitioner contended that the lower Court has not understood the import of the finding of the Supreme Court in Kiran Singh's case (supra), besides maintaining that the amended provisions of Section 21, sub-section (2) of the Code clearly provide that where no objection is taken to the pecuniary jurisdiction of Court, the judgment and decree passed by it cannot be said to be a nullity unless there is a consequent failure of justice. The learned counsel for the respondent, on the other hand, supported the findings of the lower Court by contending that due to non-filing of the court-fee on the amount of Rs. 40,000/- the decree would still not be executable.