In support of his argument Mr. Bhaskar Bhattacharjee refers to a Supreme Court decision inIttyavira Mathai v. Varkey Varkey, . In the said case a certain decree obtained by a party in a suit was alleged to be a nullity as this relevant suit was time barred. The decree-holders had in the meantime transferred the decree and the transferee executed it. The validity of the decree was not challenged before its execution. In a subsequent suit the validity of the decree was challenged on the ground that it was obtained in a suit which was barred by Limitation. It was argued that although the point of Limitation was not raised in the previous suit, yet in view of the peremptory provisions of Section 3 of the Limitation Act was the duly of the Court to take notice of the provisions of the said section and decide the Validity of the suit on its basis. The Supreme Court held that even if the court decreed a time barred suit erroneously, it would at best be an illegality on the point of limitation which the court had jurisdiction to pass. The Court further held that if the legality of the decree was not challenged in an appropriate forum under the Civil Procedure Code, the decree would continue to be a valid decree being passed by a competent court having jurisdiction over it. The following portion of the judgment in paragraph 8 fully explains the stand taken by the court in this respect.
"The first point raised by Mr. Paikedy for the appellant is that the decree in O.S. No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuming that the suit was barred by time, it is difficult to appropriate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiciton to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vita! issue in the suit, cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh and contended that since the court is bound under the provision of Section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity."
7. The above passage of the judgment clearly explains the legal point enunciated by the Court. The decree passed in time barred suit suffers from the usual legal infirmity and can be successfully challenged in an appropriate appellate forum. But if it is not challenged, it becomes final if, of course, the court had the necessary jurisdiction to pass it.
Calcutta High Court
Sk. Md. Ismail vs Sk. Anwar Ali And Others on 12 February, 1991
Equivalent citations: AIR 1991 Cal 391
1. This appeal is against an appellate Judgment and decree passed by the Second Court of Sub Judge, Hooghly, confirming a judgment and decree of the Second Court of Munsif, Serampur. The facts of the case out of which the appeal arose may be briefly stated as follows:--
2. One Sk. Abdul Matin, the defdt. No. 1 in the Original Suit in the Munsifs Court sold the disputed property to the respondent-plaintiff Sk. Anwar AH on 3-8-1971 for a consideration of Rs. 500/ - and executed a sale deed, but the registration of the deed was deferred at the instance of the said defdt. till 10-8-1971. On 10-8-1971, however the said defdi. No. 1 refused to register the document. On 12-8-1971 the respondent presented the deed for registration before the Sub-Registrar, but defdt. No. 1 did not appear before the Sub-Registrar in spite of service of notice upon him. The Sub-Registrar, concerned ultimately refused to register the deed on 20-9-1971. An appeal was filed before the District Registrar against the order of the Sub-Registrar, but the Registrar also refused registration of the document by an order dated 19-12-1972. A suit was subsequently field on 24-1-1973 before the Munsif's court under Section 77 of the Registration Act, 1908 for a declaration that the relevant sale deed was executed by the said defdt. Sk. Abdul Matin in favour of the respondent plaintiff and for a direction upon the Sub Registrar to register the same. The defdt. No. 1 the original defdt. contested the suit by filing a written statement denying the alleged and the execution of the deed and also the receipt of the alleged consideration money. According to him the respondent-plaintiff fraudulently got his thumb impression on some Demi papers and stamped papers on the pretext of obtaining some loan for him and taking advantage of his blindness prepared a sale deed. Subsequently however, he sided with the plaintiff and compromised the suit with him. He actually deposed for the plaintiff admitting the execution of the deed and expressing his willingness to register the same. At this stage the present appellant before this court was added as defdt. No. 2 in the original suit at his own prayer and it was he who contested the suit before the Munsifs court and having lost there filed an appeal before the first appellate court. The first appellate court having confirmed the MunsifPs Court's judgment the appellant has filed this appeal against the said judgment of confirmation.
3. Mr. S.K. Banerjee appearing for the appellant attacks the judgment of the Subordinate Judge on several grounds. His first ground of attack is that the suit under Section 77 of the Registration Act, 1908 was barred by limitation and that the courts below condoned the delay in filing the suit by a wrong application of Section 5 of the Limitation Act, 1908. His Second ground of attack is that the issue regarding Limitation was decided against the original defendant when the present appellant was not in the picture i.e. before his being added a party to the suit, but that the ld. Sub-judge declined to interfere with the decision by applying the principle of res judicata which was in fact an outrageous application of the said principle to the facts of the present case. His third ground of attack is that original defendant having filed a written statement challenging the plaintiff the plaintiff-respondent's case and contesting the suit on the point of limitation collusively joined the plaintiff respondent without withdrawing his written statement. His evidence was, therefore, against his pleading and was not acceptable according to law. His last point of attack is that the suit was not maintainable in the absence of the Sub Registrar who was a necessary party.
4. On behalf of the respondent Mr. Bhaskar Bhattacharjee submits that the appeal is not maintainable at the instance of the present appellant as he was not a necessary party in the original suit. As regards limitation, his defence is that the courts below had jurisdiction to decide the point of Limitation in the manner they did and that the same could not be reopened at this forum. As regards the argument that the suit was not maintainable in the absence of the Sub Registrar, his defence is that the Sub Registrar was not a necessary party and that the suit was maintainable in his absence.
5. As regards the first point, namely, the suit was barred by limitation Shri Banerjee submits that the period of Limitation for filing a suit under Section 77 of the Registration Act is thirty days and that the suit in the Munsifs court having been filed beyond the said period, the suit was clearly barred by Limitation. In this case the period of Limitation was saved by filing an application under Section 5 of the Limitation Act. But according to Mr. Banerjee, Section 5 of the Limitation Act is not applicable to a suit. It applies to appeal and to applications other than an application under Order 21, C.P. Code. The argument is a correct one and its correctness is also not challenged by the learned Advocate for the respondent. It is, therefore, evident that the two lower courts protected the suit from the bar of Limitation by an erroneous application of Section 5 of the Limitation Act. But the respondent's stand is that notwithstanding the incorrect decision on the point of Limitation, the decree is saved as the court had jurisdiction to pass the order in the way it did.
6. In support of his argument Mr. Bhaskar Bhattacharjee refers to a Supreme Court decision inIttyavira Mathai v. Varkey Varkey, . In the said case a certain decree obtained by a party in a suit was alleged to be a nullity as this relevant suit was time barred. The decree-holders had in the meantime transferred the decree and the transferee executed it. The validity of the decree was not challenged before its execution. In a subsequent suit the validity of the decree was challenged on the ground that it was obtained in a suit which was barred by Limitation. It was argued that although the point of Limitation was not raised in the previous suit, yet in view of the peremptory provisions of Section 3 of the Limitation Act was the duly of the Court to take notice of the provisions of the said section and decide the Validity of the suit on its basis. The Supreme Court held that even if the court decreed a time barred suit erroneously, it would at best be an illegality on the point of limitation which the court had jurisdiction to pass. The Court further held that if the legality of the decree was not challenged in an appropriate forum under the Civil Procedure Code, the decree would continue to be a valid decree being passed by a competent court having jurisdiction over it. The following portion of the judgment in paragraph 8 fully explains the stand taken by the court in this respect.
"The first point raised by Mr. Paikedy for the appellant is that the decree in O.S. No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuming that the suit was barred by time, it is difficult to appropriate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiciton to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vita! issue in the suit, cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh and contended that since the court is bound under the provision of Section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity."
7. The above passage of the judgment clearly explains the legal point enunciated by the Court. The decree passed in time barred suit suffers from the usual legal infirmity and can be successfully challenged in an appropriate appellate forum. But if it is not challenged, it becomes final if, of course, the court had the necessary jurisdiction to pass it. In the instant case, the decree has been challenged in second appeal and it has been done on a point of law. As already pointed out, S. 5 of the Limitation Act does not apply to a suit. The computation of Limitation in a suit after condoning different periods of delay has been dealt with in Sections 13, 14, 15, 17, 18, 19 and 22 of the Limitation Act, 1963. The respondent's case is not covered by any of the aforesaid sections. Clearly, therefore, the learned Munsif was in gross error in condoning the period of Limitation under Section 5 of the Limitation Act. The legal point decided in Ittyavira Mathai's case , therefore, does not apply here as the decree has been challenged here before it has reached finality.
8. As regards the principle of res judicata which has been applied by the learned Sub Judge to prevent, the defendant-appellant from re-agitating the issue regarding limitation in the appeal, it will be seen that this issue was decided between the plaintiff and the original defendant (No. 1) before the present appellant was added as a party. It was, therefore, not an issue decided "between the same parties" within the meaning of Section 11 of the Civil Procedure Code. The learned Subordinate Judge has held, relying on Supreme Court decision, that the principle of res judicata applies between the two stages of the same litigation to this extent that a court, whether the trial court or a higher court, having at an earlier stage decided a matter in any way will not allow the parties to fe-agitate the matter at a subsequent stage of the same proceeding. The principle of law stated above is unassailable. But the fallacy lies in the manner the said principle has been applied to the instant case. The Subordinate Judge has proceeded on the proposition that the appeal is a continuation of the suit and that as such the issue of Limitation once decided in the suit cannot be re-agitated in the appeal. This is a throughly misconceived proposition and if the agrument of the lower appellate court is accepted then all the issues decided in the suit should be deemed to be final and the channel of a possible challenge of the findings on such issues by way of appeal is blocked. This is certainly not the law.
9. The learned Advocate for the respondent a decision of this court in Baikuntha Kumar Sil v. Sarat Ch. Nath and argues that the present appellant was not a necessary party in the suit. In the aforesaid suit it was held that in a suit under Sec. 77 of the Registration Act the only question is whether or not the document purported to have been executed by a certain person is executed by that person. Therefore, a person claiming to have purchased the property at a prior sale from the executant is not a proper party in such a suit the title question not being strictly within the scope of Section 77. It was further held that the expression "proper party" meant the party who might be interested in the result of the suit and who might have a right to seek the assistance of the court in coming to a decision on the point in issue.
10. A suit under Section 77 does not certainly decide the title, although the question whether the alleged executant had actually executed the deed is a definite factor in coming to a decision whether he passed any title by executing the deed. Thus when the court decides the issue that there was actually execution, the transferee, would not generally be barred by this decision and he will have to file a fresh suit for declaration of his title and in that suit the issue of execution of the deed will be a major issue. The question of fraud etc. may also be a relevant fact in connection with the execution. As in the case of Baikuntha Kumar Sil v. Sarat Ch. Nath it has been held that any other transferee is not a necessary party, it follows that the issue regarding execution will not be a res judicata against him. But if the other transferee is actually made a party and a decree is passed against him, is he not entitled to a right of appeal?
11. The joinder of the present appellant as a defendant in the trial court was not challenged in the courts below. The joinder of party was preceded by some unusual facts.
The original defendant was contesting the suit diligetly by alleging that the respondent-plaintiff by taking advantage of his blindness committed fraud on him. Subsequently, however, he decided to side with the respondent and tried to compromise the suit. As he did not withdraw the pleading already filed, the appellant apprehended cousion between him and the original defendant No. 1 and it was at this stage that the appellant prayed to be added as a party which was allowed. The Court could have rejected the prayer, but it did not do so. What is more, the learned Munsif made the following observations in his judgment.
"Since the sale by defendant No. 1 of the suit property to defendant No. 2 took place on 10-8-1971 i.e. after the said property was sold to the plaintiff by defendant No. 1 the sale to the plaintiff is not affected by the sale of the self same property to the defendant No. 2 by the plaintiff and as such, the sale of the suit property to the plaintiff by defendantNo. 1 is a valid sate and the sale deed executed by the defendant No. 1 is declared to be executed validly and is not barred by the specific Relief Act and the suit is maintained in the present form and issues Nos. 1, 4, 5 are answered in favour of the plaintiff and the plaintiff is entitled to the decree as prayed for."
Thus the Seamed Munsif made a finding regarding the disputed title between the parties although it was beyond the scope of the suit the appellant being not a necessary party according to the above Calcutta decision .
12. The question of the appellant's right to file the appeal has in fact been influenced by the above finding of the trial court. The learned Subordinate Judge also felt embarressed by the aforesaid finding of the Munsif although he has ignored the finding on the plea that the suit was actually not decreed against the defendant No. 1. On that ground he found that the appeal was not maintainable at the instance of the present appellant.
13. The question, however, does not appear to be that simple. The suit was decreed on contest with costs. Who contested the suit and by whom the costs were payable to the plaintiff? It was not contested by defendant No. 1. As a matter of fact he supported the respondent plaintiff by deposing on his behalf. So far as he was concerned it might at best be a decree on admission. Thus although I agree that the present appellant was not a necessary party in the trial court, nevertheless I hold that the appeal below and in this court is maintainable.
14. Regarding the allegation that defendant No. 1 deposed in favour of the plaintiff in spite of a written statement contesting the suit, as the suit was not contested by him, his subsequent decision to support the plaintiff could not affect the suit, although the said defendant, might be confronted with the filing of a false statement before the court. It is, however, a thoroughly uncomfortable, position, that a party having contested a suit on the vital point of giving an acceptable explanation about his written statement much to the embarrassment of the filing lawyer.
15. Lastly, the non-addition to the sub-registrar (as) a party would not in this case he fatal to the suit although Shri Banarjee urges this point in support of the appeal. It was a statutory suit against the decision of a public Officer and as such the officer deciding the matter had hardly any duty to justify his decision. The order of the court of a competent jurisdiction was binding on him in spite of his non-joinder as a party.
16. For the above reason I hold that the appeal would succeed on the point of Limitation. The fact that the appellant was not a necessary party would not affect that legal position that the suit was filed in the Munsifs court beyond the period of Limitation. It was filed beyond the prescribed period as mentioned in Section 3 of the Limitation Act, 1963 and being not legally computed in accordance with the provisions contained in Sections 4 to 24 of the said Act, the period was illegally extended beyond the prescribed thirty days. The suit was duly contested by the proper defendant and the period of limitation could not subsequently be agreed to be compounded with the compounding of the suit between the parties.
17. In the result this appeal succeeds. The appeal is allowed and the decree of both the lower courts are set aside. The suit before the trial court having been filed beyond the period of limitation is dismissed. Having regard to the circumstances of the case the parties are directed to bear their own costs in all the courts.
18. Appeal allowed.
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