Dismissed

Smt. Sunanda Rajendra Nahar and Anr. v. Bharat Uttamchand Nahar and Anr.

Bombay HC14 Sept 2023CRA/130/2023

Case brief

AI extract

What is this about?

Single judge held the executing court was justified in rejecting an application under Section 47 CPC challenging a decree as nullity due to procedural lapses in abatement of suit, distinguishing the case from Gurnam Singh as the trial court passed an order under Order 22 Rule 6 CPC before passing the decree. The civil revision application was rejected.

What did the court decide?

The civil revision application was rejected. The application for continuation of ad-interim relief is also rejected.

Smt. Sunanda Rajendra Nahar and Anr. Vs Bharat… — Execution and Attachment | Bombay HC (2023)

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910-cra130-2023.F.doc

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VRJ

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO.130 OF 2023

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VAIBHAV RAMESH JADHAV Digitally signed byVAIBHAV RAMESH JADHAV Date: 2023.09.14 19:19:56 +0530

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Sunanda Rajendra Nahar & Anr.… Applicants
V/s.

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Bharat Uttamchand Nahar & Anr.… Respondents

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Mr. S. C. Wakankar for the applicants.

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Mr. Chaitanya B. Nikte with Mr. Prajit Sahane & Mr.
Hitanshu Jain for the respondent No.1.

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CORAM :AMIT BORKAR, J.

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DATED:SEPTEMBER 14, 2023

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P.C.:

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1.By this application under section 115 of the Civil Procedure
Code, 1908 (hereafter, "the CPC", for short), the judgment debtor
is challenging the rejection of the application under section 47 of
the CPC, raising an objection about the executability of decree on
the ground of nullity.

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2.Darkhast No.85 of 2021 was filed for executing a decree
passed in Special Civil Suit No.1533 of 2008 dated 23rd March
2020. The applicants in the execution petition filed an objection
under section 47 of the CPC, contending that the original plaintiff
died on 16February 2019. After 90 days, the suit is abated; the
decree passed in such suit is nullity. Even the order allowing the
application under Order 22 Rule 6 of the CPC is without

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jurisdiction. The second objection is that the defendant's status in
the suit was that of a gratuitous licensee, and, therefore, the Civil
Court has no jurisdiction to pass the decree. The Trial Court
rejected the application under section 47 of the CPC by the
impugned order dated 9 December 2022.

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3.Learned advocate for the applicants submitted that the
original plaintiff died on 16 February 2019. Therefore, the decree
passed on 23 March 2020 without bringing legal representatives of
the plaintiff on record is a nullity and is without jurisdiction. The
suit stands abated after the lapse of 90 days. No order of the Court
declaring the suit abated is required. He submitted that the Civil
Court had no jurisdiction to entertain a dispute between the
owners and gratuitous licensee as only the Small Causes Court can
decide such a suit. In support of his contentions, he relied on the
following judgments:

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a)N.P. Thirugnanam (dead) By Lrs. vs. Dr. R. Jagan
Mohan Rao And Others reported in (1995) 5 SCC 115.

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b)Narhari S/o Shrawan Moon (now deceased)
through L.Rs. And Others. vs. Silas S/o Kannobaji
Punwatkar And Others reported in 2022(3) Mh.L.J. 788.

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c)Raniya Bai W/o Madhav Rathore vs. Tekmani
Rathore S/o Dasru Rathore & Others in Second Appeal
No.1171 of 2014 decided on 17th April 2023 (Madhya Pradesh
High Court at Jabalpur).

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d)Gurnam Singh (Dead) Through Legal
Representatives And Others vs. Gurbachan Kaur (Dead)

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910-cra130-2023.F.doc

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By Legal Representatives reported in (2017) 13 SCC 414.

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e)Golla Krishna Murthy vs. Golla Yellaih (Dead) his
L.Rs. & Ors. reported in 2001 (2) A.P.L.J. 405 (HC).

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f)Vishvanath Dnyanoba vs. Lallu Kabla reported in
(1909) Bom.L.R. 1070 [Vol. XI.]

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g)Sunita Laxmanrao Shinde And Ors vs. Ashwini Co-
operative Housing Society Ltd. Pune and Ors. reported in
2007(4) Mh.L.J. 866.

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4.Per contra, learned advocate for the decree-holder submitted
that the applicants have filed an appeal, which is pending. In the
said appeal, the applicants applied for a stay to delivery of
possession. The Appellate Court granted conditional stay subject to
the applicants depositing Rs.1,00,000/- per month. The petition
against said the applicants withdrew conditional order. He
submitted that considering the microscopic scope of section 47 of
the CPC, such objection is not maintainable as the Trial Court,
before passing the decree, has passed an order under the
provisions of Order 22 Rule 6 of the CPC. The challenge to such an
order can be raised only before the Superior Court and not before
the executing Court.

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5.He also submitted that the objection regarding the
jurisdiction of the Civil Court to entertain a dispute between the
owner and gratuitous licensee was raised during the pendency of
the suit. This Court, by reasoned order dated 19 March 2018 in
Civil Revision Application No.353 of 2016, negatived the
challenge, holding that the Civil Court alone had jurisdiction to

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910-cra130-2023.F.doc

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decide the suit. In support of his contention, he relied on the Apex
Court's judgment in the Dhurandhar Prasad Singh vs. Jai
Prakash University And Others reported in (2001) 6 SCC
534.

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6.I have heard learned counsel for the parties and scrutinized
the material. Since the application arises out of the rejection of an
application under section 47 of the CPC, it is necessary to consider
the parameters laid down by the Apex Court regarding the scope
of section 47 of the CPC. In the case of Dhurandhar Prasad
Singh (supra), the Apex Court, in paragraph 24, has laid down as
follows:

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“24.The exercise of powers under Section 47 of the Code is
microscopic and lies in a very narrow inspection hole. Thus it
is plain that executing court can allow objection under
Section 47 of the Code to the executability of the decree if it
is found that the same is void ab initio and a nullity, apart
from the ground that the decree is not capable of execution
under law either because the same was passed in ignorance
of such a provision of law or the law was promulgated
making a decree inexecutable after its passing.
………………………...”

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7.In the light of parameters laid down by the Apex Court, the
scope of powers to be exercised by the executing Court is limited
to ascertaining whether the decree sought to be executed is a
nullity or void ab initio or incapable of execution.

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8.The undisputed facts necessary for adjudication of the issue
involved are as follows:

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910-cra130-2023.F.doc

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(i)On 16 February 2019, the plaintiff died;

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(ii)On 1 March 2019, legal representatives of the plaintiff
applied to bring themselves on record;

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(iii) On 12 June 2019, the application under Order 22 Rule
6 of the CPC was filed by legal representatives of the
deceased plaintiff;

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(iv)On 10 January 2020, the Trial Court allowed the
application under Order 22 Rule 6 of the CPC, holding that
since the plaintiff died after the completion of evidence and
final arguments, there is no need to bring legal
representatives of the deceased plaintiff on record;

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(v)On 10 January 2020, the Trial Court rejected the
application under Order 22 Rule 3 of the CPC filed by the
legal representatives of the plaintiff, holding that there is no
need to allow the application as the application under Order
22 Rule 6 of the CPC is allowed;

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(vi)On 23 March 2020, the decree in question was passed
by the Trial Court;

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9.Considering the facts narrated above, it appears that the
Trial Court, before passing the decree on 10 January 2020 passed
two orders.

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(i)Rejecting the application under Order 22 Rule 3 of the
CPC filed by the legal representatives of the plaintiff;

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(ii)Allowing the application under Order 22 Rule 6 of the

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910-cra130-2023.F.doc

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CPC filed by the plaintiff's legal representatives.

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10. While passing the aforesaid order, the Trial Court recorded a
satisfaction that there is no need to bring legal representatives of
the plaintiff on record in view of order 22 rule 6 of CPC. The trial
court thereafter passed a decree on merits. Therefore, the only
remedy available to a person against whom a decree is passed is to
raise a challenge to such order passed under Order 22 Rule 6 of
the CPC. The validity of such an order allowing application under
Order 22 Rule 6 of the CPC cannot be questioned before the
executing Court. Whether the Court passing a decree based on
such order passed under Order 22 Rule 6 of the CPC had exercised
its jurisdiction illegally or contrary to law is a question to be
decided by the superior Court and not by the executing Court. The
decree passed by the Court based on such order passed under
Order 22 Rule 6 of the CPC holding that it is not necessary for the
legal representatives of the plaintiff to bring themselves on record,
assuming it to be based on an illegal exercise of powers; such
challenge cannot be raised before the executing Court.

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11. In the case of Gurnam Singh And Another (supra), the
Supreme Court was considering a situation where a party to an
appeal died before the conclusion of arguments in the appeal. In
such a situation, the Supreme Court held that the decree passed in
such an appeal is without jurisdiction as the appeal abates after a
period of 90 days. However, the passing of an order by the Trial
Court under Order 22 Rule 6 of the CPC, in the facts of the present
case, distinguishes the judgment of Gurnam Singh from the
present case.

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12. In so far as the rest of the judgments relied upon by the
applicants are concerned, there can be no quarrel on the
proposition of law laid down by the court. However, in none of the
cases, the Trial Court, before passing the decree, passed an order
under Order 22 Rule 6 of the CPC, holding that there is no need to
bring legal representatives on record, as according to the Trial
Court, the hearing was concluded. Whether the hearing was
concluded or not, that factor needs to be adjudicated by the
Appellate Court and not by the executing Court.

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13. Passing an order applying incorrect provisions of law is the
most illegal order. However, such an order is neither nullity nor the
decree passed on such satisfaction under Order 22 Rule 6 of the
CPC, which can be termed nullity in the eyes of the law by the
executing Court. Therefore, in my opinion, the executing Court
was justified in rejecting the application under section 47 of the
CPC. No interference under section 115 of the CPC is called for.

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14. The civil revision application is, therefore, rejected.

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15. All contentions raised by the parties are kept expressly open,
and the appeal shall be decided on its own merit in accordance
with law.

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16. At this stage, the learned advocate for the applicants prays
for the continuation of ad-interim relief. As pointed out by the
learned advocate for the respondents, the Appellate Court granted
a conditional stay to the order of possession, which order has been
confirmed by this Court. In the absence of a deposit of such
amount or part of such amount, the ad-interim relief granted

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cannot be extended as the applicants are not ready to deposit even
50% of the arrears and areready to deposit Rs.1,00,000/- only.
Hence, the application for continuation of ad-interim relief is
rejected.

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(AMIT BORKAR, J.)

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Smt. Sunanda Rajendra Nahar and Anr. v. Bharat Uttamchand Nahar and Anr.

Case brief

What is this about?

What did the court decide?

Smt. Sunanda Rajendra Nahar and Anr. v. Bharat Uttamchand Nahar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Parties & counsel

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