HARLAL KAMTI Vs. JHARI SINGH

JUDGEMENT

(1.) Harlal Kamti and others, decree-holders, appeal against the order dismissing the execution case which they brought against Jhari Lal Singh and other judgment-debtors, now respondents. The facts are as follows: The Kamti appellants got a preliminary decree on a mortgage bond on 27 January 1927. Subsequently the appellant Anchu Singh purchased a portion of the decree from them. The mortgage decree was made absolute on 25 November 1930. Execution was taken out in June 1933; and after the usual formalities the property was sold and purchased by the decree-holders on 7 November 1933. Miscellaneous cases were then filed by the judgment-debtors. On 5 June 1934, the sale was set aside for failure to have notices served under Order 21, Rule 16, in respect of that portion of the decree which had been purchased by Anchu Singh. A few days later in another miscellaneous case the Munsif dismissed the execution case altogether, on the ground that the decree was time barred and incapable of execution and in fact a nullity having been made final on an application which was filed more than three years after the passing of the preliminary decree. This order was supported on appeal by the learned District Judge of Darbhanga, who held that the decree was time-barred and that the executing Court could go behind the decree as had been done by the Munsif.

(2.) The first argument advanced in this appeal is that the decree was time-barred. The decree itself was not time-barred; but the application upon which the decree had been made final was filed more than three years after the date of the preliminary decree. And the period of limitation for such application would be three years under Art. 181, Limitation Act. It must be noticed, however that the decree-holders had applied within the three years for preparation of a final decree. Their first application was rejected for default as they had omitted to take some steps with regard to the service of notice on the judgment-debtors. It is somewhat doubtful whether the Munsif was right in rejecting the application. He might have done better to keep it pending until the decree-holders complied with his requirements. But as it was rejected, the decree-holders were quite at liberty to file another application for final decree within the three years allowed. The order rejecting the application did not amount to dismissal of the mortgage suit. After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. And even if the decree-holder's second application was filed after the expiry of the period of limitation, the Court had full power to restore the original application and make its preliminary decree final for the ends of justice, under Section 151, Civil P.G. Ample authority for these propositions will be found in the following cases: Jodha Singh V/s. Gokaran Das Pande 1925 All 622, Chandra Sekhar V/s. Ameer Begam 1927 All 439, Puran Lal V/s. Komal Singh, 1933 Oudh 229, Tadepalli Sriramulu V/s. Firm of Srirumulu 1933 Mad 55 and Lachmi Narain Marwari V/s. Balmakund Marwari 1924 PC 198. In my opinion the decree was neither time-barred nor incapable of execution.

(3.) The other question to be decided is whether the executing Court was entitled to go behind the decree as has been done by the Munsif. The learned District Judge has referred to the remarks made by a Full Bench of this Court in Jangli Lall V/s. Laddu Ram Marwari 1919 Pat 430. In that, case it was held that an executing Court can refuse to execute a decree passed against a dead man because such a decree is a nullity. He has also referred to the case of Srimati Haridasi Ghosh v. MothiWari Town Co-operative, Society 1934 Pat 145. In that case it was held that an executing Court could refuse to execute a decree of the Registrar of Co- operative Societies made against a person who was not a member of the Co- operative Society concerned, because such a decree was beyond the Registrar's jurisdiction and therefore a nullity. But the case which we are now considering is somewhat different. We must remember that an order made without jurisdiction is not the same thing as an order made in erroneous exercise of jurisdiction. The former is null and void but the latter is only voidable. This distinction has been drawn by a Full Bench of the Calcutta High Court in Gora Chand Haldar V/s. P.K. Roy 1925 Cal 907. It was held in that case that an executing Court can only question such decrees as have been made without jurisdiction. In the case which we are now considering, the Munsif was seised of the case and competent to pass orders on the application for final decrees. The mere fact that he overlooked the bar of limitation or acted wrongly in not applying it would not make his order without jurisdiction. In my opinion the executing Court was not entitled to go behind this decree, which itself was not time-barred, and investigate the question whether the application upon which it had been prepared was time-barred.