GORA CHAND HALDAR Vs. PRAFULLA KUMAR ROY

JUDGEMENT

(1.) This appeal is directed against an order of the Subordinate Judge of Birbhum holding the decree sought to be executed by the Appellant incapable of execution and dismissing his application for execution. In 1910 Appellant obtained the mortgage decree which he is now seeking to execute in the Court of the Subordinate Judge of Birbhum in respect of properties, some of which were in the District of Birbhum and some in the Santhal Parganas. In this execution case the judgment-debtors have taken exception to the execution on the ground that when the decree was passed, some of the mortgaged properties situated in the Santhal Parganas were under settlement, and so under Section 2 of Act 37 of 1855 the Birbhum Court had no jurisdiction to pass the decree; the decree having thus been passed without jurisdiction is void and incapable of execution. The Court below has found that one of the Santhal Parganas properties Mouzah Mouloti was under settlement when the decree was passed and held, under the provisions of the Act above referred to and on the authority of the decision of the Judicial Committee of the Privy Council in Maha Prasad Singh V/s. Ramani Mohan Singh A.I.R. 1914 P.C. 140, that the Birbhum Court had no jurisdiction to try the suit and pass the decree which is accordingly void and incapable of execution. In this view the learned Subordinate Judge has dismissed the execution case. The finding of fact recorded by the Court below has not been disputed before us by the Appellant but the order of the Court below has been assailed on two grounds:-(1) that the Court below as executing Court could not go behind the decree and test its validity but was bound to execute it even though it was passed without jurisdiction; (2) that the Court below is wrong in holding that the whole decree was bad and it should have executed so much of it as was valid in respect of the Birbhum properties.

(2.) The second contention may be shortly disposed of as untenable in view of the decision of the Judicial Committee in Maha Prasad Singh V/s. Ramani Mohan Singh A.I.R. 1914 P.C. 140.

(3.) On the first point there is no unanimity of opinion and we find it difficult to reconcile some of the decisions of this Court In Roopnarain Singh V/s. Ramajee Singh [1878] 3 C.L.R. 192 and Narendra Bahadur V/s. Gopal Shah [1912] 17 C.L.J. 634, the objection that the decree was void and incapable of execution was permitted to be raised and allowed in the execution of the decree. A contrary view was taken in Biswanath Prosad Mahata V/s. Bhagwandin Pandey [1911] 14 C.L.J. 648 and in Kali Pada Sarkar V/s. Hari Mohan Dalal [1916] 44 Cal. 627, where it has been laid down that an execution Court cannot question the validity of the decree and refuse execution though the decree was a nullity and passed without jurisdiction. In Kunja Mohan Chakravarti V/s. Manindra Chandra Rai Chaudhuri A.I.R. 1928 Cal. 619, Mookerjee, J., who was a party to the decisions in Biswanath V/s. Bhagwandin [1911] 14 C.L.J. 648 and Kali Pada v. Hari Mohan [1916] 44 Cal. 627, enunciates the proposition of law that when a decree is void and a nullity it is not only the duty of the Court which passed it to ignore it but of every Court to which it is presented. Though the case in which this observation was made did not arise in execution, it is wide enough to cover a case like the present and is in conflict with the view expressed by the same learned Judge in the two previous cases above cited. This question has been recently considered by a Full Bench of the Patna High Court in Junglee Lal V/s. Laddu Ram [1919] 4 P.L.J. 240, where as a review of the conflicting authorities it has been held that an execution Court can only execute a valid decree, and a void decree ought to be disregarded without any formal proceedings to set it aside. The same view has been taken in other High Courts. Imdatt Ali V/s. Jugan Lal [1895] 17 All. 478, Hazi Musa V/s. Purmanand [1890] 15 Bom. 216 and M. Subramania V/s. Vaithnatha [1918] 38 Mad. 682.