Law Web: error of procedure

Sunday, 20 August 2017

Whether illegal decree can be set aside by executing court?

That apart, as observed by the lower appellate court, this is not a case where the executing court lacked inherent jurisdiction. When relationship is of landlord and tenant but the Rent Control Legislation was inapplicable to the premises even then, the suit had to be filed in the Court of small causes and it was so filed. Assuming Rent Control Legislation was applicable the suit still could have been filed in the Small Causes Court, considering language of Section 26(2) of the Provincial Small Causes Court Act and Section 28 of the Bombay Rent Act. Therefore, this is not a case where the Court lacked inherent jurisdiction as contended by Mr. Kulkarni. At the most, what could be said is that the Trial Court erroneously exercised the jurisdiction. The Court gave opportunity to the judgment debtor to continue in possession if he clears all the arrears of rent and in default of the same, he was to suffer the consequences i.e. Eviction from the premises. It is not as if the Trial court has denied him any opportunity to make payment of the arrears. By applying the principles enshrined in Rent Control Legislation, it gave him that opportunity. Merely because the order was passed ex-parte or by strictly not adopting the mode prescribed in the Rent Control Act and more particularly Section 12 of the same does not mean that the Decree is a nullity. At the most it is an erroneous or irregular or illegal decree. That distinction in law must be maintained. An erroneous or an illegal decree can be set aside only if party aggrieved by it invokes the remedies prescribed in law to impugn and challenge it. If it does not do so, then, in execution proceedings, the decree cannot be set aside on the ground of any illegality or it being vitiated by errors of procedure. Therefore, there is no merit in the argument of Mr. Kulkarni that the executing court lacked inherent jurisdiction to entertain and try the suit and hence, the decree is a nullity. The objections in that behalf have been rightly over-ruled and the concurrent orders and do not suffer from any error apparent or perversity so as to call for interference in writ jurisdiction.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4965 of 2008

Decided On: 12.06.2009

Smt. Savitribai A. Salvi

Vs.

Smt. Suman Navgire and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari, J.

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Friday, 21 July 2017

Whether decree can be set aside in execution proceeding for error of procedure?

At the outset, it must be borne in mind that the jurisdiction under Section 47 of the C.P.C. conferred on the Executing court is limited and narrow. The liberty to object to the executability and enforceability of a decree by raising objections before the executing court, does not mean that the objector can re-open the matter and the proceedings. That is not intended by the Legislature. He is not permitted to urge such pleas and matters which would require reopening of the decree on concluded issues. In other words, this jurisdiction cannot be equated with that of an Appeal or Review. It being extremely limited and narrow, the objections must fall within the ambit and scope of the same. If they fall outside the purview of the said limited power, then, the executing court is not empowered to take note of them.

15. If any authority is needed for this purpose, then, a reference can usefully be made to a decision of the Supreme Court in the case of Dhurander Prasad Singh v. Jaiprakash reported in MANU/SC/0381/2001 : [2001]3SCR1129 . Therein, the Supreme Court observed that the powers of the Court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. Exercise of powers under Section 7 of the Code is microscopic and lies in a very narrow inspection hole.

An erroneous or an illegal decree can be set aside only if party aggrieved by it invokes the remedies prescribed in law to impugn and challenge it. If it does not do so, then, in execution proceedings, the decree cannot be set aside on the ground of any illegality or it being vitiated by errors of procedure. Therefore, there is no merit in the argument of Mr. Kulkarni that the executing court lacked inherent jurisdiction to entertain and try the suit and hence, the decree is a nullity. The objections in that behalf have been rightly over-ruled and the concurrent orders and do not suffer from any error apparent or perversity so as to call for interference in writ jurisdiction.

IN THE HIGH COURT OF BOMBAY