Gujarat High Court
Jetput Navagadh Municipality Through … vs Lh Of Decd Janamben Karimbhai Umarbhai … on 13 June, 2025
NEUTRAL CITATION
C/CRA/392/2025 JUDGMENT DATED: 13/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 392 of 2025
With
R/CIVIL REVISION APPLICATION NO. 393 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/
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Approved for Reporting Yes No
✔
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JETPUT NAVAGADH MUNICIPALITY THROUGH CHIEF OFFICER
Versus
LH OF DECD JANAMBEN KARIMBHAI UMARBHAI RAHAMANBHAI
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Appearance:
MR BHAVESH P TRIVEDI(2731) for the Applicant(s) No. 1
MR RR TRIVEDI(941) for the Applicant(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 13/06/2025
ORAL JUDGMENT
1. The present Civil Revision Applications under Section 115 of the
Code of Civil Procedure, 1908 (for short “the CPC“) are filed
challenging the order dated 24.12.2024 passed by the Principal
Senior Civil Judge Jetpur in Regular Execution Petition No.49 of
1999 and Regular Execution Petition No.53 of 1999.
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2. For the sake of brevity and convenience, the parties are referred to
at their original status as that in the Regular Execution Petition
No.49 of 1999.
3. The judgment and decree passed in Civil Suit No.545 of 1993 and
Civil Suit No.549 of 1993 was challenged by the petitioner herein
by way of filing Regular Civil Suit No.129 of 2000 and Regular
Civil Suit No.132 of 2000 and the Execution Petition with respect
to the judgment and decree in Civil Suit No.545 of 1993 and Civil
Suit No.549 of 1993 is by way of Regular Execution Petition
No.49 of 1999 and Regular Execution Petition No.53 of 1999.
4. The brief facts arising in the present Civil Revision Application are
as under:
5. The decree debtor had filed Regular Civil Suit no.545 of 1993 and
Regular Civil Suit No.549 of 1993 on the ground that the decree
holder is a tenant of the decree debtor and the land on which the
decree holder is possessing is to be used by decree debtor for the
purpose of vegetable market and therefore the decree debtor
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required the eviction of the decree holder and in the said suit, a
settlement was arrived at. The general body of the municipality
passed a resolution no.18 dated 27th April, 1988, to settle the
dispute in Lok Adalat which was held on 4th May, 1998. In the Lok
Adalat, the president of the Municipality entered into a
compromise pursuant to the aforesaid resolution by agreeing that
the Municipality would appoint its engineer to decide the valuation
of the property and on the basis of the said valuation, the decree
debtor will accept the amount of consideration for the sale of
property and would execute the sale deed in favour of the decree
holder.
6. Thereafter, it appears that the Chief Officer did not approve the
settlement arrived at by the President of the Municipality stating
that the President had no authority in law and requested the Court
to proceed with the suit, however, the application of the Chief
Officer was rejected by the Court and when the Chief Officer
wanted to challenge the said order before the higher forum the
President did not grant such permission and as the President did not
permit the Chief Officer to challenge the order, the Chief Officer
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approached the Collector and the Collector directed the Chief
Officer to institute the suit to challenge consent decree and the
Chief Officer of Municipality thereafter filed Regular Civil Suit
no.129 of 2000 before the learned Judge Junior Division Jetpur and
challenged the compromise arrived at by the President and it was
argued that the Chief Officer agreed and put his signature on
compromise without the permission of the Chief Officer and after
taking into consideration the oral and documentary evidence and
giving finding on all the issues, the said suit has been dismissed
and upheld the said order passed on the compromise in Regular
Civil Suit No.545 of 1993 and Regular Civil Suit No.549 of 1993
and in view of the said consent terms, the Regular Execution
Application No.49 of 1999 and Regular Execution Application
No.53 of 1999 was filed by the decree holder for executing the said
sale deed and the said execution application was allowed and the
Registrar was directed to decide the valuation of the property and
submit report and to execute sale deed on the said basis.
7. While deciding the said Execution Application, the Executing
Court had passed an order on 14.08.2013, whereby the said
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execution application was allowed and Registry was directed to
decide the valuation of the property and to submit a report and
execute the sale deed on that basis, the said order was challenged
by way of Special Civil Application No.12947 of 2014 and Special
Civil Application No.12951 of 2014 by the decree debtor as the
Executing Court while passing the order had not taken into
consideration the provisions of Order XXI Rule 34 of the CPC and
copy of preparation of the draft document inviting a consideration
of objection of the judgment debtor was not considered. The Co-
ordinate Bench of this Court by an order dated 05.07.2018 had
remanded the matter to the Executing Court to undertake a fresh
exercise for deciding the same in accordance with and in
compliance with the provisions of Order XXI Rule 34 of the CPC
and while deciding the same this Court had also given liberty to the
decree debtor to take objections as against the executing of the
decree under Section 47 of the CPC and to raise all objections and
questions under the said provisions as the law may permit and
thereafter, objections were raised by the decree debtor and after
taking into consideration the objections the execution petition was
allowed and the market value of the suit property was decided at
Rs.99,000/- and the Registrar Principal Senior Civil Judge Jetpur
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was appointed as officer for the purpose of execution of the sale
deed as per proposed draft filed vide exhibit 57 and the said order
is under challenge by way of present Civil Revision Application.
8. Learned advocate for the decree debtor has mainly argued that the
Executing Court has not taken into consideration the provisions of
Section 65 of the Gujarat Municipalities Act, 1963, wherein more
particularly at Section 65(3) specifically provides that a sanction by
resolution at general body is required, if the sale of immovable
property does not exceed Rs.1,00,000/- and therefore, as there is no
sanction of the Municipality by resolution passed at general
meeting, the judgement and decree passed by the Trial Court in
Lok Adalat is inexecutable decree and therefor the said contention
has not been considered by the Executing Court. Learned advocate
for the petitioner/decree debtor has also argued that the Executing
Court has also not taken into consideration the provisions of
Section 66 of the Gujarat Municipalities Act, 1963. It has also been
argued that under the provisions of Section 250 of the Gujarat
Municipalities Act, 1963, the decree debtor can compromise any
suit instituted by it, provided that, if such sanction in the making of
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any contract is required by this Act, the previous sanction had to be
obtained of the State Government and as in the present case there
was no consent from the State Government to enter into a
compromise, the Executing Court could not have allowed the said
Execution Petition as the said decree is inexecutable under the law.
9. Learned advocate for the petitioner-decree debtor has relied upon
the Judgement as under:
(i) Bhagubhai H.Devani Vs. Porbandar Municipality And
Others, AIR 1984 Gujarat 134;
(ii) Doshi Mohanlal Durlabhji Vs. Savarkundla Municipality,
1981(0)AIJEL-HC 203266;
(iii) Aliyathammuda Beethathebiyyappura Pookoya And Another
Vs. Pattakal Cheriyakoya And Others, (2019) 16 SCC 1;
10.It has also been argued by the learned advocate for the decree
debtor that while deciding Special Civil Application No.12047 of
2014, the Co-ordinate Bench of this Court has specifically given
liberty to the decree debtor to raise all the questions with respect to
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the inexecutability of the decree under the provisions of Section 47
of the CPC and the said is not taken into consideration by the
Executing Court and therefore also the decree that has been passed
is against the provisions of law, more particularly Section 65(3) of
the Gujarat Municipalities Act, 1963. Therefore, it has been argued
that the present Civil Revision Application is required to be
allowed and the order that has been passed by the Executing Court
in Regular Execution Application No.49 of 1999 is required to be
quashed and set aside.
11.Per contra learned Senior Advocate Mr.Mehul S.Shah for the
decree holder has argued that the fact that the judgement and
decree is inexecutable the said issue was already raised by the
decree debtor while filing Regular Civil Suit No.129 of 2000 and
Regular Civil Suit No.132 of 2000, wherein decree debtor had
challenged the decree that has been passed in Regular Civil Suit
No.545 of 1998 and a specific prayer was sought in the said suit to
declare the judgement and decree passed in Regular Civil Suit
no.545 of 1993 and Regular Civil Suit no.549 of 1993 to be void
ab initio and not binding on the decree debtor and after taking into
consideration the oral evidence, documentary evidence and giving
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finding on all the issues, the said suit filed by the decree debtor has
been dismissed, the said judgement and decree passed by the Trial
Court in Regular Civil Suit No.129 of 2000 and Regular Civil Suit
No.132 of 2000 and has not been challenged by the decree debtor
and therefore the said is binding on the decree debtor and therefore
the present Civil Revision Application is required to be rejected. It
has also been argued by the learned Senior Advocate for the decree
holder that proceedings are pending since last more than 25 years
and after taking into consideration the judgment and decree that
has been passed in Lok Adalat and the fact that the said judgment
and decree was also challenged by way of an independent suits i.e.
Regular Civil Suit No.129 of 2000 and Regular Civil Suit No.132
of 2000, the decree debtor cannot have second round of litigation
by way of challenging the correctness of the judgment and decree
passed in Regular Civil Suit No.545 of 1993 and Regular Civil Suit
no.549 of 1993 and therefore the said issue could not have been
taken into consideration while considering the objection under
Section 47 of the CPC and therefore it has been argued that the
Executing Court has rejected the said objection and allowed the
Execution Petition.
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12.Learned Senior Advocate Mr.Mehul S.Shah for the decree holder
has relied upon judgment as under:
(i) In case of Asma Lateef And Another Vs. Shabbir Ahmad And
Others, (2024) 4 SCC 696;
(ii) Rahul S.Shah Vs. Jinendra Kumar Gandhi, 2021 (0) AIJEL-
SC 67318;
(iii) Pradeep Mehra Vs. Harjivan J.Jethwa (Since Deceased Thr.
Lrs.) And Others, 2023 (0) AIJEL-SC 72721;
12. It has been argued that the judgement and decree that has
been passed by the Executing Court is not required to be quashed
and set aside.
13. The issue before this Court is that in Lok Adalat Civil Suit
has been decreed and it has been specifically agreed between the
parties that the decree debtor shall execute a sale deed in favour of
the decree holder after valuation has been decided by Engineer of
the petitioner and as the valuation was not done by Engineer of the
petitioner, the decree holder filed Regular Execution Petition no.49
of 1999 and Regular Execution Petition No.53 of 1999. The
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objection of the decree debtor to the execution proceeding is that
the said judgment and decree passed under the compromise is not
executable decree as the same is against the provisions of Gujarat
Municipalities Act, 1963.
14. Having heard learned advocates appearing for the respective
parties the fact remains that the decree debtor has already
challenged the said judgement and decree passed in Lok Adalat in
Civil Suit No.129 of 2000 and Civil Suit No.132 of 2000 the said
suit has been dismissed on merits after taking into consideration all
the objections that were raised by the decree debtor in the said suit.
The objections were also taken in the said suit with respect to the
provisions of Gujarat Municipalities Act, 1963 and after taking into
consideration all the objections the said suit challenging the
consent decree that was passed in Civil Suit has been dismissed.
The fact remains that the Executing Court cannot sit in appeal to
the said findings that have been arrived at in Regular Civil Suit
no.129 of 2000 and Regular Civil Suit no132 of 2000.
15. Moreover, when all the questions have already been decided
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in Regular Civil Suit no.129 of 2000 and Regular Civil Suit no132
of 2000 and also considered by the executing Court this Court
cannot go beyond the decree to be executed as it would exceed its
revisional jurisdiction under Section 115 of the CPC. Since, the
finding of the Trial Court in Regular Civil Suit no.129 of 2000 and
Regular Civil Suit no132 of 2000 had attained finality. Moreover,
the Executing Court could not have travelled beyond the order and
decree under execution, the Executing Court gets jurisdiction to
execute the order in accordance with the procedure laid down
under Order XXI of the CPC, Section 47 of the CPC reads as
under:
“47. Questions to be determined by the
Court executing decree.–(1) All
questions arising between the parties to
the suit in which the decree was passed,
or their representatives, and relating to
the execution, discharge or satisfaction
of the decree, shall be determined by
the Court executing the decree and not
by a separate suit.
* * * *
(3) Where a question arises as to
whether any person is or is not the
representative of a party, such question
shall, for the purposes of this section, be
determined by the Court.
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[Explanation I.–For the purposes of
this section, a plaintiff whose suit has
been dismissed and a defendant against
whom a suit has been dismissed are
parties to the suit.
Explanation II.–(a) For the purposes
of this section, a purchaser of property
at a sale in execution of a decree shall
be deemed to be a party to the suit in
which the decree is passed; and
(b) all questions relating to the delivery
of possession of such property to such
purchaser or his representative shall be
deemed to be questions relating to the
execution, discharge or satisfaction of
the decree within the meaning of this
section.]”
16. The said provision states that all questions between the
parties can be decided by the Executing Court, the said questions
are limited to the execution of the decree and Executing Court can
never go beyond the decree and under Section 47 of the CPC, the
Executing Court cannot examine the validity of the order passed by
the Trial Court unless the same was without jurisdiction. The
Executing Court have extremely limited powers as the said powers
are microscopic. The order challenging the decree by way of filing
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Regular Civil Suit no.129 of 2000 and Regular Civil Suit no132 of
2000 was admittedly never challenged in appeal by the decree
debtor and has attained finality and reiterating the said stand that
was taken in Regular Civil Suit no.129 of 2000 and Regular Civil
Suit no132 of 2000, which has attained finality, objections were
raised by the decree debtor before Executing Court and the
Executing Court has not considered the said objection. The
Executing Court has taken the correct decision in not considering
the said objections filed by the decree debtor and in that view of
the matter, there is no illegality in the said judgement and decree.
17. The judgment on which learned advocate for the decree
debtor relies on in case of Bhagubhai H.Devani V. Porbandar
Municipality And Others reported in AIR 1984 GUJARAT 134,
more particularly head note (C) which reads as under:-
“(C) Gujarat Municipalities Act (34 of 1964),
S.65, S.80- Sale of land for housing –
Municipality cannot be permitted to sell land
by private sale.
Constitution of India, Art. 12 –
The Municipality cannot be permitted to
dispose of the land by private sale without
following some known reasonable principles:-
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(1) The Municipality is “State” within the
meaning of Art. 12 of the Constitution.
(2) The Municipality is the trustee of all the
property vested in it and a statutory duty is
cast upon it to deal with the property as
trustee, thereof (see S. 80 of the Act).
(3) The Municipality is an elected body. Every
citizen of the town has interest in each and
every paisa of the Municipality.
(4) The Municipality being accountable to the
people, cannot and should not act otherwise
than in accordance with law. Simply because
the law permits and puts only restrictions as
provided under S. 65 of the Act, it does not
mean that the Municipality can act arbitrarily
in the manner not consistent with the normally
accepted principles of administration of public
properties.
(5) If the Municipality has large area of land
which can be set apart for the purposes of
providing residential accommodation to its
citizens, then also the same cannot be
distributed at random. The fact that there is
large area of land at the disposal of the
Municipality means that there will be choice
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factors like the development in the area, the
facilities of road, drainage, etc. available in
the area. The competitive claims of different
groups with regard to a particular piece of
land will have to be decided in a rational and
reasonable manner on the basis of certain
principles and guidelines.”
and Doshi Mohanlal Durlabhji Vs. Savarkundla
Municipality, 1981(0)AIJEL-HC 203266;
(iii) Aliyathammuda Beethathebiyyappura Pookoya And
Another Vs. Pattakal Cheriyakoya And Others, (2019) 16
SCC 1;
The said judgments will be of no assistance to the decree debtor as
the said contention was already taken while deciding the Special
Civil Suit. Moreover, the said judgment will also be of no
assistance to the decree debtor as the present proceeding is
challenged to the execution proceedings whereby the judgment and
decree has already been passed.
18. With respect to the judgment that has been relied on by the
learned advocate for the decree holder in case of Asma Lateef And
Another Vs. Shabbir Ahmad And Others, (2024) 4 SCC 696,
more particularly para nos.35 to 48 of which reads as under:-
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“35. However, there, it was an appellate decree
which this Court was called upon to examine. We
realise that we are not examining the correctness
of a judgment/order arising from exercise of
appellate jurisdiction by the High Court but a
judgment approving an order on an objection
under section 47, CPC, scope wherefor is limited.
36. Our real task is to ascertain whether the
decree drawn up on the basis of the order dated
5th August, 1991 and put to execution by the
appellants could have been objected to by the
respondents 1 to 3 as inexecutable under section
47, CPC. Section 47, CPC, being one of the most
important provisions relating to execution of
decrees, mandates that an executing court shall
determine all questions arising between the parties
to the suit or their representatives in relation to
the execution, discharge, or satisfaction of the
decree and that such questions may not be
adjudicated in a separate suit.
37. Reference to a couple of authorities on the
scope and nature of section 47, CPC, at this stage,
would not be inapt.
38. In Vasudev Dhanjibhai Modi v. Rajabhai
Abdul Rehman12, this Court was considering the
scope of objection under section 47 of the CPC in
relation to the executability of a decree. Therein, it
was laid down that only such a decree could be the
subject-matter of objection which is a nullity and
not a decree which was erroneous either in law or
on facts. Law was laid down in the following
terms:
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“”6. A court executing a decree cannot go behind
the decree:
between the parties or their representatives it must
take the decree according to its tenor and cannot
entertain any objection that the decree was
incorrect in law or on facts. Until it is set aside by
an appropriate proceeding in appeal or revision, a
decree even if it be erroneous is still binding
between the parties.
7. When a decree which is a nullity, for instance,
where it is passed without bringing the legal
representative on the record of a person who was
dead at the date of the decree, or against a ruling
prince without a certificate, is sought to be
executed an objection in that behalf may be raised
in a proceeding for execution. Again, when the
decree is made by a court which has no inherent
jurisdiction to make objection as to its validity may
be raised in an execution proceeding if the
objection appears on the face of the record: where
the objection as to the jurisdiction of the Court to
pass the decree does not appear on the face of the
record and requires examination of the questions
raised and decided at the trial or which could have
been but have not been raised, the executing Court
will have no jurisdiction to entertain an objection
as to the validity of the (1970) 1 SCC 670 decree
even on the ground of absence of jurisdiction.”
39. In Dhurandhar Prasad Singh v. Jai Prakash
University13, this Court further expounded the
powers of a court under section 47, CPC in the
following words:
“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 executingPage 18 of 33
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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….” (underlining
ours, for emphasis)”
40. The legality of the order of the High Court,
together with the order of the Executing Court that
the former went on to uphold, has to be tested
having regard to the settled position of law as
noticed above and bearing in mind that the powers
of an executing court, though narrower than an
appellate or revisional court, can be exercised to
dismiss an execution application if the decree put
to execution is unmistakably found to suffer from
an inherent lack of jurisdiction of the court that
made the same rendering it a nullity in the eye of
law.
41. For reasons more than one, we propose to
hold that the Executing Court and the High Court
were right in holding that the objection raised by
the respondents 1 to 3 to the executability of the
decree was well-founded.
42. What appears to be of significance in the light
of the decisions referred to above is the
importance of the legal term ‘jurisdiction’, and the
question whether the Trial Court did have the
jurisdiction to pass the order it did on 5th August,
1991 followed by the decree signed on 11th
November, 1991.
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43. What does ‘jurisdiction’ mean? In the ensuing
discussion, we feel inclined to draw guidance from
certain decisions of ancient vintage which have
stood the test of time.
44. The wisdom of Sir Ashutosh Mukherjee, A.C.J.,
speaking for a Full Bench of the High Court at
Calcutta in Hirday Nath Roy v. Ramachandra
Barna Sarma14, more than a century back,
profitably assists us in understanding what is
meant by ‘jurisdiction’, ‘lack of jurisdiction’ and
‘error in the exercise of jurisdiction’. The relevant
passage reads as under:
“…An examination of the cases in the books
discloses numerous attempts to define the term
‘jurisdiction’, which has been stated to be ‘the
power to hear and determine issues of law and
fact’; ‘the authority by which judicial officers take
cognizance of and decide causes’; ‘the authority to
hear and decide a legal controversy’; ‘the power
to hear and determine the subject- matter in
controversy between parties to a suit and to
adjudicate or exercise any judicial power over
them’; ‘the power to hear, determine and
pronounce judgment on the issues before the
Court’; ‘the power or authority which is conferred
upon a Court by the legislature to bear and
determine causes between parties and to carry the
judgments into effect’; ‘the power to enquire into
the facts, to apply the law, to pronounce the
judgment and to carry it into execution. … This
jurisdiction of the Court may be qualified or
restricted by a variety of circumstances. Thus, the
jurisdiction may have to be considered with
reference to place, value, and nature of the 1920
SCC OnLine Cal 85 : ILR LXVIII, Cal 138 subject-
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matter. … This classification into territorial
jurisdiction, pecuniary jurisdiction and
jurisdiction of the subject-matter is obviously of a
fundamental character. Given such jurisdiction,
we must be careful to distinguish exercise of
jurisdiction from existence of jurisdiction; for
fundamentally different are the consequences of
failure to comply with statutory requirements in
the assumption and in the exercise of jurisdiction.
The authority to decide a cause at all and not the
decision rendered therein is what makes up
jurisdiction; and when there is jurisdiction of the
person and subject-matter, the decision of all other
questions arising in the case is but an exercise of
that jurisdiction. The extent to which the
conditions essential for creating and raising the
jurisdiction of a Court or the restraints attaching
to the mode of exercise of that jurisdiction should
be included in the conception of jurisdiction itself
is sometimes a question of great nicety…But the
distinction between existence of jurisdiction and
exercise of jurisdiction has not always been borne
in mind and this has sometimes led to confusion.
… We must not thus overlook the cardinal position
that in order that jurisdiction may be exercised,
there must be a case legally before the Court and a
hearing as well as a determination. A judgment
pronounced by a Court without jurisdiction is
void, subject to the well-known reservation that
when the jurisdiction of a Court is challenged, the
Court is competent to determine the question of
jurisdiction, though the result of the enquiry may
be that it has no jurisdiction to deal with the
matter brought before it.”
*** Besides the cases mentioned therein, reference
may particularly be made to the judgment of
Srinivas Aiyangar, J., in Tuljaram v. Gopala [32
Mad. L.J. 434; 21 Mad. L.J. 220 (1916).] , where
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the true rule was stated to be that if a Court has
jurisdiction to try a suit and has authority to pass
orders of a particular kind, the fact that it has
passed an order which it should not have made in
the circumstances of that litigation, does not
indicate total want or loss of jurisdiction so as to
render the order a nullity.” (underlining ours, for
emphasis)
45. Hirday Nath Roy (supra) found approval in
Official Trustee v. Sachindra Nath Chatterjee15, a
co-ordinate Bench decision of this AIR 1969 SC
823 Court. The relevant observations of this
Court in Sachindra Nath Chatterjee (supra) are
reproduced below:
“12. It is plain that if the learned judge had no
jurisdiction to pass the order in question then the
order is null and void. It is equally plain that if he
had jurisdiction to pronounce on the plea put
forward before him the fact that he made an
incorrect order or even an illegal order cannot
affect its validity. …
15. *** it is clear that before a Court can be held
to have jurisdiction to decide a particular matter it
must not only have jurisdiction to try the suit
brought but must also have the authority to pass
the orders sought for. It is not sufficient that it has
some jurisdiction in relation to the subject-matter
of the suit. Its jurisdiction must include the power
to hear and decide the questions at issue, the
authority to hear and decide the particular
controversy that has arisen between the parties.
…” (underlining ours, for emphasis)Page 22 of 33
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35. The essence really is that a court must not only
have the jurisdiction in respect of the subject
matter of dispute for the purpose of entertaining
and trying the claim but also the jurisdiction to
grant relief that is sought for. Once it is conceded
that the jurisdiction on both counts is available, it
is immaterial if jurisdiction is exercised
erroneously. An erroneous decision cannot be
labelled as having been passed ‘without
jurisdiction’. It is, therefore, imperative that the
distinction between a decision lacking in inherent
jurisdiction and a decision which suffers from an
error committed in the exercise of jurisdiction is
borne in mind.
36. Moving on to decisions of not too distant an
origin, we notice that this Court in Rafique Bibi v.
Sayed Waliuddin16 whilst relying on (2004) 1
SCC 287 Vasudev Dhanjibhai Modi (supra), has
made valuable observations as to the
circumstances where an order passed could be
regarded as a nullity. The relevant observations
made in Rafique Bibi (supra) read thus:
“6. What is ‘void’ has to be clearly understood. A
decree can be said to be without jurisdiction, and
hence a nullity, if the court passing the decree has
usurped a jurisdiction which it did not have; a
mere wrong exercise of jurisdiction does not result
in a nullity. The lack of jurisdiction in the court
passing the decree must be patent on its face in
order to enable the executing court to take
cognizance of such a nullity based on want of
jurisdiction, else the normal rule that an executing
court cannot go behind the decree must prevail.
7. Two things must be clearly borne in mind.
Firstly, ‘the court will invalidate an order only if
the right remedy is sought by the right person inPage 23 of 33
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the right proceedings and circumstances. The
order may be ‘a nullity’ and ‘void’ but these terms
have no absolute sense: their meaning is relative,
depending upon the court’s willingness to grant
relief in any particular situation. If this principle
of illegal relativity is borne in mind, the law can
be made to operate justly and reasonably in cases
where the doctrine of ultra vires, rigidly applied,
would produce unacceptable results.”
(Administrative Law, Wade and Forsyth, 8th Edn.,
2000, p. 308.) …
8. A distinction exists between a decree passed by
a court having no jurisdiction and consequently
being a nullity and not executable and a decree of
the court which is merely illegal or not passed in
accordance with the procedure laid down by law.
A decree suffering from illegality or irregularity
of procedure, cannot be termed inexecutable by
the executing court; the remedy of a person
aggrieved by such a decree is to have it set aside
in a duly constituted legal proceedings or by a
superior court failing which he must obey the
command of the decree. A decree passed by a
court of competent jurisdiction cannot be denuded
of its efficacy by any collateral attack or in
incidental proceedings.” (underlining ours, for
emphasis)”
19. In case of Rahul S.Shah Vs. Jinendra Kumar Gandhi,
2021(0) AIJEl-SC 67318, in para nos.23, 24 and 25 it has held as
under:
“23. This court has repeatedly observed that
remedies provided for preventing injustice are
actually being misused to cause injustice, by
preventing a timely implementation of orders andPage 24 of 33
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execution of decrees. This was discussed even in the
year 1872 by the Privy Counsel in The General
Manager of the Raja Durbhunga v. Maharaja
Coomar Ramaput Sing 14 which observed that the
actual difficulties of a litigant in India begin when he
has obtained a decree. This Court made a similar
observation in Shub Karan Bubna @ Shub Karan
Prasad Bubna v Sita Saran Bubna15, wherein it
recommended that the Law Commission and the
Parliament should bestow their attention to
provisions that enable frustrating successful
execution. The Court opined that the Law
Commission or the Parliament must give effect to
appropriate recommendations to ensure such
amendments in the Code of Civil Procedure, 1908,
governing the adjudication of a suit, so as to ensure
that the process of adjudication of a suit be
continuous from the stage of initiation to (1871-72)
14 Moore’s I.A. 605 (2009) 9 SCC 689 the stage of
securing relief after execution proceedings. The
execution proceedings which are supposed to be
handmaid of justice and sub-serve the cause of justice
are, in effect, becoming tools which are being easily
misused to obstruct justice.
24. In respect of execution of a decree, Section 47 of
CPC contemplates adjudication of limited nature of
issues relating to execution i.e., discharge or
satisfaction of the decree and is aligned with the
consequential provisions of Order XXI. Section 47 is
intended to prevent multiplicity of suits. It simply lays
down the procedure and the form whereby the court
reaches a decision. For the applicability of the
section, two essential requisites have to be kept in
mind. Firstly, the question must be the one arising
between the parties and secondly, the dispute relates
to the execution, discharge or satisfaction of the
decree. Thus, the objective of Section 47 is to prevent
unwanted litigation and dispose of all objections as
expeditiously as possible.
25. These provisions contemplate that for execution
of decrees, Executing Court must not go beyond thePage 25 of 33
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decree. However, there is steady rise of proceedings
akin to a re-trial at the time of execution causing
failure of realisation of fruits of decree and relief
which the party seeks from the courts despite there
being a decree in their favour. Experience has shown
that various objections are filed before the Executing
Court and the decree holder is deprived of the fruits
of the litigation and the judgment debtor, in abuse of
process of law, is allowed to benefit from the subject
matter which he is otherwise not entitled to.”
20. In case of Pradeep Mehra Vs. Harjivan J. Jethwa (Since
Deceased Thr. Lrs.) And Others, 2023 (0) AIJEL-SC 72721, in
para no.5, it has held as under:
“5. A bare perusal of the aforesaid
provision shows that all questions between
the parties can be decided by the executing
court. But the important aspect to remember
is that these questions are limited to the
“execution of the decree”. The executing
court can never go behind the decree.
Under Section 47, CPC the executing court
cannot examine the validity of the order of
the court which had allowed the execution
of the decree in 2013, unless the court’s
order is itself without jurisdiction. More
importantly this order (the order dated
12.02.2013), was never challenged by the
tenants/judgment debtors before any forum.
The multiple stages a civil suit invariably
has to go through before it reaches finality,
is to ensure that any error in law is cured byPage 26 of 33
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the higher court. The appellate court, the
second appellate court and the revisional
court do not have the same powers, as the
powers of the executing court, which are
extremely limited. This was explained by
this Court in Dhurandhar Prasad Singh v.
Jai Prakash University and Others (2001) 6
SCC 534, in para 24, it had stated thus:
“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.”
This Court noted further:
“………. The validity or otherwise of
a decree may be challenged by filing
a properly constituted suit or taking
any other remedy available under
law on the ground that the original
defendant absented himself from thePage 27 of 33
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proceeding of the suit after
appearance as he had no longer any
interest in the subject of dispute or
did not purposely take interest in the
proceeding or colluded with the
adversary or any other ground
permissible under law.”
21. In case of Brakewel Automotive Components (India) Pvt.
Ltd. Vs. P.R.Selvam Alagappan, 2017 (0) AIJEL-SC 59942,
wherein it has held in para no.19 as under:
“19. It is no longer res integra that an
Executing Court can neither travel behind the
decree nor sit in appeal over the same or pass
any order jeopardizing the rights of the
parties thereunder. It is only in the limited
cases where the decree is by a court lacking
inherent jurisdiction or is a nullity that the
same is rendered non est and is thus
inexecutable. An erroneous decree cannot be
equaled with one which is a nullity. There are
no intervening developments as well as to
render the decree inexecutable.”
-The said judgments will be applicable to the facts of the present
case. In the present case, the Executing Court cannot go beyond the
decree and in the present case the decree debtor had already
challenged the legality of the impugned judgment and had taken all
the contentions with regard to the judgment and decree that has
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been passed in Regular Civil Suit No. 545 of 1993 and Regular
Civil Suit No. 549 of 1993, including the same that the said
judgment and decree is against the provisions of Gujarat
Municipalities Act, 1963 and the findings that have been arrived at
by the Trial Court in Regular Civil Suit no.129 of 2000 and
Regular Civil Suit no.132 of 2000 have attained finality, the same
cannot be challenged by way of filing objections under Section 47
of the CPC and therefore the Trial Court has rightly rejected the
said objection.
22. Section 47 CPC, being one of the most important provisions
relating to execution of decrees, mandates that an executing court
shall determine all questions arising between the parties to the suit
or their representatives in relation to the execution, discharge, or
satisfaction of the decree and that such questions may not be
adjudicated in a separate suit. Only such a decree could be the
subject matter of objection which is a nullity and not a decree
which was erroneous either in law or on facts. Moreover, a court
executing a decree cannot go behind the decree. It must take the
decree according to its tenor and cannot entertain any objection
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that the decree was incorrect in law or on facts. Until it is set aside
by an appropriate proceeding in appeal or revision, a decree even if
it be erroneous is still binding between the parties. When the
decree is made by a court which has no inherent jurisdiction to
make objection as to its validity may be raised in an execution
proceeding if the objection appears on the face of the record: where
the objection as to the jurisdiction of the Court to pass the decree
does not appear on the face of the record and requires examination
of the questions raised and decided at the trial or which could have
been but have not been raised, the executing court will have no
jurisdiction to entertain an objection as to the validity of the decree
even on the ground of absence of jurisdiction. Moreover, 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. The legality of the
order of the executing court that the former went on to uphold, has
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to be tested having regard to the settled position of law and bearing
in mind that the powers of an executing court, though narrower
than an appellate or revisional court, can be exercised to dismiss an
execution application if the decree put to execution is
unmistakably found to suffer from an inherent lack of jurisdiction
of the court that made the same rendering it a nullity in the eye of
the law. An erroneous decision cannot be labelled as having been
passed “without jurisdiction”. It is, therefore, imperative that the
distinction between a decision lacking in inherent jurisdiction and a
decision which suffers from an error committed in the exercise of
jurisdiction is borne in mind. A decree can be said to be without
jurisdiction, and hence a nullity, if the court passing the decree has
usurped a jurisdiction which it did not have; a mere wrong exercise
of jurisdiction does not result in a nullity. The lack of jurisdiction
in the court passing the decree must be patent on its face in order to
enable the executing court to take cognizance of such a nullity
based on want of jurisdiction, else the normal rule that an
executing court cannot go behind the decree must prevail. A
distinction exists between a decree passed by a court having no
jurisdiction and consequently being a nullity and not executable
and a decree of the court which is merely illegal or not passed in
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accordance with the procedure laid down by law. A decree
suffering from illegality or irregularity of procedure, cannot be
termed inexecutable by the executing court; the remedy of a person
aggrieved by such a decree is to have it set aside in a duly
constituted legal proceedings or by a superior court failing which
he must obey the command of the decree. A decree passed by a
court of competent jurisdiction cannot be denuded of its efficacy
by any collateral attack or in incidental proceedings. Hence, it is
clear that all irregular or wrong decrees would not necessarily be
void. An erroneous or Illegal decision, which was not void, could
not be objected in execution or incidental proceedings. The
multiple stages a civil suit invariably has to go through before it
reaches finality, is to ensure that any error in law is cured by the
higher court. The appellate court, the second appellate court and
the revisional court do not have the same powers, as the powers of
the executing court, which are extremely limited. It is no longer res
integra that an Executing Court can neither travel behind the decree
nor sit in appeal over the same or pass any order jeopardizing the
rights of the parties thereunder. It is only in the limited cases where
the decree is by a court lacking inherent jurisdiction or is a nullity
that the same is rendered non-est and is thus inexecutable. An
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erroneous decree cannot be equaled with one which is a nullity.
There are no intervening developments as well as to render the
decree inexecutable.
23. In view of the same both the Civil Revision Applications are
required to be dismissed and the same are accordingly dismissed.
Sd/
(SANJEEV J.THAKER,J)
URIL RANA
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