CANTOMENT BOARD Vs. KISHAN LAL

JUDGEMENT

(1.) This is an execution second appeal arising out of a suit brought by the Cantonment Board through the Secretary of State for India in Council against the defendant, Kishan Lal, for recovery of certain grazing dues, which had been agreed to be paid in instalments to the Board under a lease, dated 6 July 1928. The suit was brought in the Court of the Munsif of Muttra, and an objection was taken in the written statement that the suit was not cognizable by the civil Court. The learned Munsif held that the Tenancy Act of 1928 did not apply to the Cantonment areas under the new Act. No doubt under Section 1 of the old Tenancy Act of 1901 the Cantonment areas, not being administered by the Lieutenant-Governor of the North Western Provinces, were excluded; but the language of Section 1, Agra Tenancy Act of 1926, was altered and the Act was made applicable to the whole of the Province of Agra, except certain areas mentioned in the schedule, which does not include a Cantonment area. It has therefore to be conceded by the Government Advocate that the Munsif was, wrong in holding that ho had jurisdiction to entertain the suit; nonetheless be decided the point in favour of the plaintiff and decreed the claim for money. No appeal was preferred from that judgment to the District Judge; nor of course, there was any further remedy sought from the High Court. It may also be mentioned that the suit was for recovery of an amount in excess of Rs. 500 and being one for recovery of grazing dues could not be treated as a suit of Small Cause Court nature.

(2.) The Cantonment Board applied for execution of the decree in the Munsif's Court and their first application for execution: having been dismissed, a second application for execution was filed to which objections were raised that the civil Court had no jurisdiction to entertain the suit at all. The first Court held that the execution Court could not go behind the decree as the matter had been decided in the suit itself and that, it must take the decree as it stands and execute it. On appeal however the lower appellate Court has on the strength of certain authorities come to the conclusion that it is open to the execution Court to go behind the decree and ascertain whether the Munsif had jurisdiction to entertain the suit and if it came to the conclusion that he had not, to dismiss the application for execution, The lower appellate Court accordingly has re-examined the plaint and held that the suit was not cognizable by the Munsif. It has accordingly dismissed the application for execution. The Cantonment Board have come up in second appeal, and a learned Judge of this Court referred this case to a Division Bench, which has referred it to a larger Bench. It must be conceded on behalf of the Board that the suit was not cognizable by the civil Court at all. As it related to pasturage and not to an agricultural holding, even Section 273, Tenancy Act, would not have been applicable and the civil Court could not have sent a mere issue to the Revenue Court for trial but would have been compelled to return the plaint for presentation to the proper Court. This is clear from the definitions of "land" and "holding" given in Section 3. It must therefore be assumed that the suit was not cognizable by the Munsif at all and, if he had decided the matter rightly, he had no option but to return the plaint.

(3.) The question however that arises before us is whether this point can now be raised in the execution department. On the face of it there is a certain anomaly in the view accepted by the lower appellate Court. It would not have been a fatal objection if the matter had gone up in appeal to the District Judge from the Court of the Munsif, for if the learned Judge found that there were sufficient materials necessary for the determination of the suit, he would have under Section 269, Tenancy Act, disposed of the suit, even though it bad been instituted in the wrong Court. But now the defendant without having appealed has been allowed by the lower appellate Court to take the objection that the decree is futile and in fructuous. In this particular case it is not necessary to decide the much larger question whether an execution Court is competent to inquiry into the jurisdiction of the Court which passed the decree. There are certain difficulties if the Court is not allowed to examine such a question, and there would certainly be serious anomalies if it is allowed to do so in all cases. Section 11, Civil P.C., would not in terms apply but the principle underlying that section has been held to be applicable to the execution proceedings. Still there is a serious difficulty that if the civil Court was not competent to entertain the suit, it is difficult to see how its decision would be binding on the defendant. Prima facie a Court which has no jurisdiction to entertain a claim, cannot by seizing the case usurp jurisdiction and then by deciding that it has jurisdiction make its decision binding on the defendant. On the other hand, if an execution Court is allowed to challenge the validity of the decree, then it must have the same power even if that decree has been affirmed on appeal by the lower appellate Court and has even been confirmed by the High Court. As regards appeals under the Tenancy Act to which Section 268 or Section 269 might apply it maybe said that the decree which is binding on the parties is the appellate Court decree and not the decree of the first Court. But that explanation would be of no avail as regards cases where the first Court has proceeded without any jurisdiction, and there are no provisions similar to those contained in the sections noted above.