The Managerial Staff House Construction Society Ltd. v. Karthiyani Unni and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933** **CRP.NO. 376 OF 2011()** **---------------------------------AGAINST THE ORDER DATED 11/07/2011 IN EP 445/2002 IN OS.724/1995 OF PRINCIPAL SUB COURT,ERNAKULAM** **....................** ## **REVN. PETITIONER(S): 3RD RESPONDENT** **-------------------------------------------------------------** **THE FACT MANAGERIAL STAFF HOUSE CONSTRUCTION SOCIETY LTD., NO.E 243, SANTHINAGAR ANNEX, PO RAJAGIRI, SOUTH KALAMASSERY-683104, THRIKKAKKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.S.SHARAN** **RESPONDENT(S): PETITIONERS** **----------------------------------------------** **1. MRS. KARTHIAYANI UNNI,W/O.RAGHAVAN UNNI, RESIDING AT 22/269,"MEERA", BHAVNAGAR,CHERAKKAD, KUNNATHURMEDU.P.O., PALAKKAD-678013.** ## **2. MRS. THELMA SUNIL,** **D/O. RAGHAVAN UNNI, RESIDING AT 22/269,"MEERA", BHAVNAGAR,CHERAKKAD, KUNNATHURMEDU.P.O., PALAKKAD-678013.** **3. MR. THEJASWINI UNNI, D/O. RAGHAVAN UNNI, SIFY LTD.7TH FLOOR, KHIVRAJ COMPLEX, PHASE II NO.480, ANNASSALAI, CHENNAI-600035.** **4. DR. DILIP, S/O. LATE RAGHAVAN UNNI, RESIDING AT 22/269,"MEERA", BHAVNAGAR,CHERAKKAD, KUNNATHURMEDU.P.O., PALAKKAD-678013.** **5. P. SUKUMARAN, S/O. LATE ACHUTHA MENON, RESIDING AT HOUSE NO.5, VIDYA NAGAR COLONY, SOUTH KALAMASSERY, THRIKKAKARA NORTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682021.** **6. RADHA SUKUMARN, W/O. SUKUMARAN, RESIDING AT HOUSE NO.5,VIDYA NAGAR COLONY, SOUTH KALAMASSERY, THRIKKAKARA NORTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682021.** **ADV. SRI.SREELAL N.WARRIER FOR CAVEATORR SRI.G.GOPALAKRISHNAN NAIR (EDAPPALLY) FOR R5-6** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== C.R.P. No.376 of 2011 ==================================== Dated this the 20[th] day of September, 2011** ## **O R D E R** Petitioner/third defendant/third judgment debtor is a Society registered under the Kerala Co-operative Societies Act (for short, “the Act”). One Sebastian who is a member of petitioner obtained a plot of land in accordance with its bye-law in his capacity as member of petitioner and later his right was assigned in favour of the 6[th] respondent. It is said that the 6[th] respondent transferred his right over the property to the 5[th] respondent. While so, the original plaintiff who is a close relative of respondents 5 and 6 brought O.S. No.724 of 1995 in the court of learned Principal Sub Judge, Ernakulam seeking a declaration that the said property was purchased by respondents 5 and 6 utilising his funds for and on his behalf and for a direction to the petitioner and respondents 5 and 6 to execute a proper conveyance in his favour or his nominee within a time to be specified by the court and in case of their failure to do so, requesting that the court may execute the sale deed in favour of the original plaintiff or his nominee as the case may be. That suit was resisted by the petitioner and respondents 5 and 6 on various grounds including that the suit is not **C.R.P. No.376 of 2011** ## -: 2 :- maintainable. Learned Sub Judge found that original plaintiff is entitled to the reliefs prayed for and granted a decree accordingly. It is not disputed that respondents 5 and 6/defendants 1 and 2 preferred an appeal in challenge of the judgment and decree in the suit as A.S. No.221 of 2001 with the petitioner impleaded as the second respondent. But that appeal was dismissed on 17.09.2009 in confirmation of judgment and decree passed by the trial court. It is not disputed before me that the said matter ended there. 2. Having obtained a confirmed judgment and decree, original plaintiff filed E.P. No.445 of 2002 for execution of the decree. While that execution petition was pending, he expired. His legal heirs/representatives as the case may be (respondents 1 to 4 herein) sought impleadment as additional decree holders and that was allowed by the executing court. Petitioner challenged that order in this Court in C.R.P. No.152 of 2003 and this Court found that the executing court was right in impleading respondents 1 to 4 as additional decree holders to execute the decree but concurred with the view of the executing court that question of executability of the decree would be decided later. The executing court thereafter considered the executability of the decree in view of objection raised by the petitioner and respondents 5 and 6 and by the impugned order held that the decree is executable. That order dated July 11, 2011 is under challenge in this Civil Revision at the instance of the petitioner-Society. **C.R.P. No.376 of 2011** ## -: 3 :- 3. Learned counsel for petitioner contended that the decree is not executable since it is null and void being against the provisions of Sec.16 of the Act as also the bye-law of the petitioner. According to the learned counsel the scheme of petitioner as per its bye-law as also the provisions of the Act is that petitioner will purchase property for and on behalf of its members, the respective members are given possession of the property and hence question of passing title to the respective members did not arise. It is also the contention of learned counsel that since the original plaintiff/decree holder is not a member of petitioner, question of his availing benefit of that scheme either directly or through respondents 5 and 6 as benami did not arise. That according to the learned counsel - would violate Sec.16 of the Act and the bye law of the petitioner. In that situation learned Sub Judge could not have passed a decree and had no jurisdiction to pass such a decree. Viewed in that way according to the learned counsel, decree passed is without jurisdiction, null and void and not executable. Learned counsel has placed reliance on the decisions in ## **Purusottam Padhee v. Panchali Bewa** (AIR 1986 Orissa 138) and **Dhurandhar Prasad Singh v. Jai Prakash University** ([2001] 6 SCC 534) in support of that contention. According to the learned counsel the expression “nullity” is to be understood as affecting the power of court to pass a decree and in such a situation notwithstanding that the trial court has passed the decree and that was confirmed by the Appellate court the **C.R.P. No.376 of 2011** ## -: 4 :- issue can still be raised in execution or in collateral proceeding wherever the decree is sought to be enforced. Reliance is placed on the decisions ## in **Urban Improvement Trust v. Gokul Narain and Another** (AIR 1996 SC 1819) and **Gram Panchayat, Balad Kalan v. Ajmer** **Singh** (AIR 2000 P&H 331). A further contention learned counsel has advanced is that there is no interest which remain with the original plaintiff/decree holder which would devolve on his legal heirs/ representatives as the case may be and hence respondents 1 to 4 could not come on record to execute the decree. For that proposition reliance in placed on the decisions in **Rajeshawri Prasad Singh v.** ## **Shashi Bhushan Prasad Singh** (AIR 1996 SC 181) and **MunishKumar v. Baghula Mukhi Devi** (AIR 1998 HP 1). 4. Learned counsel for respondents 5 and 6/defendants 1 and 2 while supplementing the arguments of petitioner contended that there is dispute as to whether respondents 1 to 4 are the legal representatives/heirs as the case may be of the deceased decree holder and without resolving that issue respondents 1 to 4 could not execute the decree. Reliance is placed on the decision in **Mercy v. Aisha Ummal** (1987 [2] KLT 166) to draw a distinction between legal heir and legal representative. 5. In response it is contended by learned counsel for **C.R.P. No.376 of 2011** ## -: 5 :- respondents 1 to 4 that the executing court is not required to conduct a rowing enquiry to find out whether the trial court had the requisite jurisdiction to entertain the suit and pass a decree, that the executing court can consider executability of the decree only when lack of jurisdiction is apparent. Reliance is placed on the decision in **V.M.P. Co-op. Society Ltd. v. Catholic Syrian Bank** ( 1994 [2] KLJ 764). It is contended that the decree may not be in accordance with the provisions of the Act or the bye-law but that does not render the civil court without jurisdiction to entertain the suit and pass the decree. The illegality in a passing decree is a matter which the defendant may raise in the appellate court and if not raised would operate as constructive res judicata. If raised and decided against, that will operate as res judicata. Either way it is contended that the alleged illegality of the decree is not something which petitioner and/or respondents 5 and 6 could urge in the execution court and at any rate, does not amount to divesting the court of its power to entertain the suit and pass a decree. According to the learned counsel, nullity of the decree is entirely different from a decree passed against a provision of law. Reliance is placed on the decisions in **V.D. Modi v. Abdul Rahman and Others** ([1970] 1 SCC 670), **Rafique Bibi v. Sayed Waliuddin** ([2004) 1 SCC 287) and **Balvant N.Viswamitra v. Yadav Sadashiv Mule** ([2004] 8 SCC 706). **C.R.P. No.376 of 2011** ## -: 6 :- 6. I shall first refer to the contentions raised by learned counsel for respondents 5 and 6 as to the entitlement of respondents 1 to 4 to continue execution of the decree. It is not disputed that the original plaintiff/decree holder died pending E.P. No.445 of 2002. Hence his legal heirs/representatives as the case may be are entitled to come on record in view of Sec.146 and Rule 16 of Order 21 of the Code of Civil Procedure. Moreover, that contention of respondents 5 and 6 need not detain me much in view of the decision of this Court in C.R.P. No.152 of 2003 whereby this Court concurred with the order of the executing court impleading respondents 1 to 4 as additional decree holders. 7. Then to the argument of learned counsel for petitioner that there was no right remaining with the original decree holder to devolve on respondents 1 to 4. It is in support of that contention that learned counsel has placed reliance on the decision in **Rajeshawri Prasad Singh v. Shashi Bhushan Prasad Singh** (supra) and **Munish Kumar v. Baghula Mukhi Devi** (supra). In the former case a widow was granted life interest for maintenance until her death, such right was conferred on her even in subsequent partition among the members of the family and on her death, her legal heirs wanted partition that right of her. The Supreme Court held that there was no heritable right vested with the Widow. In he latter case the principle laid down in paragraphs 40 and 41 is that if right is personal to the party concerned, on his death there is no right to devolve on his **C.R.P. No.376 of 2011** ## -: 7 :- legal heir. There could be no quarrel with the above proposition. But in the present case the original plaintiff claimed right over immovable property and a decree was passed in his favour. That decree accrues to the estate of the original plaintiff/decree holder and certainly it could devolve on his legal heirs/representatives as the case may be in accordance with the law of succession. Therefore, the objection raised by petitioner that deceased decree holder had no right over the property to devolve on his death on respondents 1 to 4 is to be dismissed. 8. That leads me to the crucial question whether the executing court had jurisdiction to execute the decree. Various decisions on the point say that if the decree is null and void in the sense that the court which passed the decree had no jurisdiction to pass such a decree, then notwithstanding the decree has been passed or it has been confirmed it is open to the judgment debtor to raise executability of the decree on the ground of lack of inherent jurisdiction either in execution of the decree or in collateral proceedings. That is the principle laid down in **Mansu v. Shadi Ram's case** and **Gram Panchayat Balad Kalan v. Ajmer Singh** (supra) relied on by learned counsel for petitioner. The question is whether on the facts of the case it could successfully be contended by petitioner and respondents 5 and 6 that the court which passed decree lacked inherent jurisdiction to pass the decree. 9. Much of the argument that learned counsel for petitioner and **C.R.P. No.376 of 2011** ## -: 8 :- respondents 5 and 6 raised is based on Sec.16 of the Act and bye-law of the petitioner. Section 16 of the Act deals with membership of the Society and states the limits of membership of the Society. So far as the bye-law is concerned, reliance is placed on clauses 2 and 6 to impress upon the objective of petitioner. But the bye-law was not produced either in the trial court, appellate or even in the executing court and it is for the first time that in this petition reference is made to the bye-law. This Court in **V.M.P. Co-op. Society Ltd. v. Catholic Syrian Bank** (supra) (that also was a case where decree was passed against a Society registered under the Act) held that the executing court is not to conduct a rowing enquiry going into the bye-law of the Society to find whether suit was maintainable. That is not the function of the executing court. Executing court is concerned with the question whether there was apparent lack of inherent jurisdiction for the court to pass the decree which is sought to be executed. Therefore no reference can be made to the bye-law of the petitioner. 10. The illegality which learned counsel for petitioner and respondents 5 and 6 have pointed out is with respect to the membership of petitioner. The illegality argued is that there could be no assignment of property of petitioner to a non-member of petitioner. Assuming that it was illegal for the court to pass a decree in that line, question is whether it affected inherent jurisdiction of the court to pass a decree. As I said above, various decisions on the point say that executing court cannot go **C.R.P. No.376 of 2011** -: 9 :- behind the decree to find whether it was legal for the court to pass the decree or not. Its function is only to say whether the court had, apparently no jurisdiction to pass such decree. That is the principle laid down in **Dhurandhar Prasad Singh v. Jai Prakash University** (supra). There, in paragraph 24 it is held that where the decree is null and void it cannot be executed and the executability could be raised in execution as well. Though reliance has been placed by learned counsel for petitioner on the decision in **Purusottam Padhee v. Panchali Bewa** (supra) that decision is distinguishable on facts. That was a case where the suit was found to be not maintainable in that having regard to the provisions of law relied on therein, no such suit could have been brought within the period mentioned therein and hence it was held that the decree was a nullity. In other words on account of the statutory provision referred to therein there – was an interdiction to court entertaining a suit it affected the jurisdiction of court to entertain suit and that led to the decision that the decree passed was null and void. 11. In deciding the question I must refer to the expression “null and void” and “illegality”. The expression “void” means “without legal force, effect or consequence, not binding, invalid, null and worthless (See _**Nutan Kumar v. Iind Addl. Dist. Judge, Banda**_ - AIR 1994 Allahabad 298 and _**Balwant N.Viswamitra v. Yadav Sadashiv Mule**_ ([supra]). On the other hand the expression “illegal” means “contrary to law”. It has ## **C.R.P. No.376 of 2011** ## -: 10 :- been held in **Kesava Rao v. Subbaraju** (AIR 1957 AP 55) that an order is illegal if it is opposed to any enactment or any rule having the force of law. But that need not necessarily render the court which passed the order or decree without power to do so. In other words, illegality in passing decree is one thing and lack of jurisdiction for the court to pass a decree is another thing. 12. Useful reference can be made to the decision in **V.D. Modi v. Abdul Rehman and Other** s (supra). There, it was held: “A court executing a decree cannot go behind the decree: between 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 in 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”. 13. The question again came up for consideration in **Ali Haji v. Alima** (1996 [2] KLT 997). There, the decree was passed by the civil court in a family matter which otherwise should have gone before the Family Court under the Family Courts Act. Contention raised was that ## **C.R.P. No.376 of 2011** ## -: 11 :- Family Court was established for the District where the suit was filed but no Officer was appointed in the said court. This Court considered the question whether for the said reason the decree of the civil court can be without jurisdiction and hence void. Question was answered in the negative. It was held that unless it is a case of total want of jurisdiction for the trial court to pas a decree, the judgment debtor will be clearly barred by res judicata from raising the contention on any illegality in the decree. A learned Judge of this Court in **The Vicar, Jerusalem Marthoma Church, Nanthencode v. Mamman Thomas & Others** ( 2010 [3] KLJ 745) also held that lack of jurisdiction pleaded by judgment debtor must be apparent on the face of the record and a rowing enquiry into the matter is not required. In the present case no inability of the court passed a decree on account of provisions in the bye-law or Sec.16 was raised before the trial court or appellate court, in which case principle of constructive res judicata should bind petitioner and respondents 5 and 6. Moreover, I am not impressed by the contention that said illegality affected jurisdiction of the court to entertain a suit and pass decree. Apart from the bye-law of petitioner (which I said was not produced either in the trial court, appellate or even the executing court) and Sec.16 of the Act, no other provision is brought to my notice which ousted the jurisdiction of the court to entertain the suit and pass a decree. As such the contention that because a non-member of the petitioner-Society could not have acquired **C.R.P. No.376 of 2011** ## -: 12 :- land through the Society (petitioner), the decree is without jurisdiction cannot stand. The contention that the executing court lacked jurisdiction is therefore to be rejected. It follows that executing court was right in holding that there was no lack of inherent jurisdiction for the court to pass the decree and hence it cannot go behind the decree and find whether court having regard to the provisions of the Act could have passed the decree. In the view I have taken I do not find reason to interfere with the impugned order. Civil Revision is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv