RAM PARSHAD Vs. PREM NATH

JUDGEMENT

(1.) WHAT is the period of limitation prescribed for filling an execution application? and (2) whether a decree passed by a court having no pecuniary jurisdiction, be held to be nullity which cannot be executed under Order XXI C.P C., are the two important questions required to be adjusted in this appeal which have arisen in the following circumstances :

(2.) I have heard learned counsel for the parties and perused the record.

(3.) IT is now well settled proposition of law that the executing court is bound by the terms of the decree and cannot go beyond its scope and determine any objection raised by the judgment -debtor during execution proceedings. The only exception is that where a decree is found to be nullity, the executing court is not under a legal obligation to execute it. Similarly an application filed after the period of limitation for execution of the decree, may not be executable. It is also acknowledged that the jurisdiction of a civil court to try a suits is of three kinds, viz: (i) jurisdiction with reference to the nature of the suit, (ii) pecuniary jurisdiction, and (iii) territorial jurisdiction. Where the Court has jurisdiction to try a suit it has the jurisdiction to decide every question arising in the suit and its decree. Similarly where any law sets out the jurisdiction of the Court in general terms and does not particularise the remedies or processes whereby that jurisdiction may be exercised then the conferment of jurisdiction includes the authority to issue such direction or process as is necessary to enforce it. However, where a suit or proceeding is instituted in a court having no jurisdiction to try it, defect is fatal one and cannot be cured by subsequent transfer to a court having jurisdiction to try the said cause. The question of pecuniary jurisdiction of a court cannot be raised on h ground of erroneous valuation in a subsequent suit challenging the decision of a court, under Sec. 6 CPC. The pecuniary jurisdiction is determined which provides that "save in so far as is otherwise expressly provided, nothing contained in the C. P. C. shall operate to give any court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary jurisdiction of its ordinary jurisdiction". It was held by a Full Bench of the Patna High Court in Shyam Nandan Sahay and ors. v. Dhanpati Kuer and Ors (AIR 1960 Patna 244) that, "distinction is required to be drawn between cases where there is an inherent lack of jurisdiction apparent upon the face of the record and cases where it is doubtful whether the Court possessed the jurisdiction, nothing can confer the same on the court and an objection to the jurisdiction cannot be waived. Where, however, there is no total lack of jurisdiction, but, on the contrary, the averment made in the plaint manifestly bring the case within the jurisdiction of the Court in which it is filed, its proceedings are perfectly within jurisdiction and want of jurisdiction in such cases can rightly be waived". It was further held: (8) The lack of pecuniary jurisdiction comes under the latter of the above kinds of defects, and, therefore, is not fundamental in character. It can be waived by any of the parties, and, if not challenged at the proper time, it cannot be questioned subsequently. This is apparent from S. 11 of the Suits Valuation Act, which runs as follows: "11 (1) Notwithstanding anything in S. 578 of the Code of Civil Procedure (XIV of 1882) an objection that by reason of the over valuation or under valuation of a suit or appeal a court of first instance or lower appellate court which had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereof shall not be entertained by an appellate court unless (a) the objection was taken in the court of first instance at of before the hearing at which issues were first framed and recorded, or in the lower appellate court in the memorandum of appeal to that court, or b) The appellate court is satisfied, for reasons to be recorded by it in writing that the suit or appeal was over valued or under valued, and, that the over valuation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits. e) If the objection was taken in the manner mentioned in clause (a) of sub -sec. (1) but the appellate court is not satisfied as both the matters mentioned in clause (b) of that sub -section and has before it the materials necessary for the determination of the other grounds to itself it shall dispose of the appeal as if there had been no defect of jurisdiction in the court of first instance or lower appellate Court. 3) If the objection was taken in that manner and the appellate court is satisfied as to both these matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals; but if it remands the suit or appeal or frames and refers issues for trial or require additional evidence to be taken, it shall direct its order to a court competent to entertain the suit or appeal