The Supreme Court  (“SC”) recently in the case of Asma Lateef  v. Shabbir Ahmed, (Judgment dated January 12, 2024 in Civil Appeal No. 9695 of 2013) has held that, failure on the part of the defendant to file the written statement within the time permitted by the court would not be enough to pronounce the judgment against the defendant when it is obligatory upon the plaintiff to prove his case. It also held that an executing court, although having narrower powers than an appellate or revisional Court, can exercise its powers to dismiss an execution application if the decree put to execution is unmistakably found to suffer from an inherent lack of jurisdiction.

Facts of the Case:

The issue arose in a civil suit before the trial court under Section 38 of the Specific Relief Act, 1963 filed by the plaintiffs (the appellants) against 3 (three) defendants. One of the defendants being defendant no. 1 in the suit filed their written statement stating that the said suit is not maintainable before any civil court as the suit property was a bhoomidari land. It was also contended that the suit was barred by Section 41(h) of the Specific Relief Act, 1963. The other defendants in the suit did not file any written statement. The defendant no. 1 also contented in his written statement that the defendant no. 2 is his son and has no concern with the suit property and therefore was wrongly impleaded as a party.

Thereafter the appellants moved an application under Rules 5 and 10 of Order VIII of the Code of Civil Procedure, 1908 (“CPC”) against the defendant no. 2 (in the suit) and the same was allowed by the Trial Court by an order dated August 5, 1991. Subsequently the trial court on October 10, 1991 framed 11 issues and one of such issues was on the competency of the trial court to try the suit. The defendant no. 1 (in the suit) passed away on July 15, 1995 after which his sons (respondent nos. 4 and 5 in the appeal) transferred the suit property to the respondent nos. 1 to 3 in the appeal (“the purchasers”) vide a sale deed dated November 3, 1997 (“sale deed”). The suit against the defendant no. 1 (in the suit) remained pending and his legal heirs or representatives were not substituted and finally the said suit against the defendant no. 1 (in the suit) was dismissed on April 27, 2009 as abated.

In the meantime, on December 16, 1997, the appellants/plaintiffs being the purported decree holders filed an execution application before the executing court praying that the respondent nos. 4 and 5 (in the appeal) be punished for violating the order of August 5, 1991 and that the sale deed be declared as invalid. The executing court passed an interim order restraining the purchasers from interfering in any manner with the suit property.

In view of the above, the purchasers filed their objection under Section 47 of the CPC inter-alia stating that the said order dated August 5, 1991 is neither a judgment nor a decree and thus could not have been executed. The executing court allowed the objections raised by the purchasers by an order which was challenged in a revision application filed by the appellants. The revisional court dismissed the objection filed by the purchasers and directed the Executing Court to proceed with the execution of the decree. The said revisional order was challenged by the purchasers under Article 227 of the Constitution of India before the Judicature of Allahabad (“High Court”), which by its order/judgment dated February 4, 2011 quashed the order passed by the revisional court.

The impugned order dated February 4, 2011 was challenged in the present appeal.

Issues:

1. Whether the order dated August 5, 1991, passed in purported exercise of power under Rule 10 of Order VIII of CPC decreeing the suit against defendant no. 2 (in the suit) alone is without jurisdiction and a nullity which is non est and inexecutable in nature?
2. Whether the respondents 1 to 3 in the appeal, who are subsequent purchasers of the suit property, had any right to maintain an objection under section 47 of CPC against execution of the decree?
3. Whether the sale deed dated November 3, 1997 made by defendant no. 2 (in the suit) in favour of the purchasers was null and void?

Findings:

While deciding on the issue as to whether the order dated August 5, 1991 suffered from a jurisdictional error, it was held that Rule 10 is permissive in nature whereby enabling the trial court to exercise either of the two alternatives open to it.

The verb ‘shall’ in Rule 10 of Order VIII of CPC [substituted for the verb ‘may’ by the Amendment Act of 1976] does not elevate the first alternative to the status of a mandatory provision, that in every case where a party from whom a written statement is invited fails to file it, the court must pronounce the judgment against him. If that had been the purport of the legislature, the second alternative to which ‘shall’ equally applies would be rendered nugatory. Thus, if any defendant defaulted in filing the written statement and the first alternative as mentioned in the Rule 10 is the only course to be taken, the plaintiff will not need to prove his case and will be relieved of his obligations to prove his case to the satisfaction of the court.

Rule 10, in fact, must be read with Rule 5 of Order VIII of CPC and the position seems to be clear that a trial court, at its discretion, may require any fact, treated as admitted, to be so proved otherwise than by such admission.

The SC also held that in order to avoid such a situation of contradictory/ inconsistent decrees the power under Rule 10 of Order VIII of CPC ought to be invoked with care, caution, and circumspection, only when none of several defendants file their written statements and upon proper adjudication after taking of proper evidence from the side of the plaintiff. Where even one of several defendants had filed a written statement, it would be a judicious exercise of discretion for the court to opt for the second alternative provided in Rule 10 of Order VIII of CPC unless, of course, extraordinary circumstances exist warranting recourse to the first alternative.

While deciding on the issue as to respondents 1 to 3 in the appeal had any right to maintain an objection under section 47 of CPC against execution of the decree, the SC held that, Section 47 of CPC, being one of the most important provisions relating to execution of decrees makes it mandatory that an executing court shall determine all the questions arising between the parties to a 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.

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 found to suffer from an inherent lack of jurisdiction beyond doubt, rendering it nullity in the eye of law.

In reference to the question of the validity of the sale deed, the same was left open for a competent court to decide upon.

Author’s View:

Therefore, it is indisputable that a “judgment”, if pronounced by a court under Rule 10 of Order VIII of CPC, the same must satisfy the requirements of Rule 4(2) of Order XX of CPC, and thereby be in accordance with its definition provided in section 2(9) of CPC.

Therefore, where even one of several defendants had filed a written statement, it would be a judicious exercise of discretion for the court to opt for the second alternative provided under Rule 10 of Order VIII of CPC unless any extraordinary circumstances exist warranting recourse to the first alternative. Also, any court can opt for the first alternative on being satisfied that there is no fact which needs to be proved on account of deemed admission. But if the plaint itself suggests or involves disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Thus, the first alternative is permissive in nature and not a mandatory provision.

Also, any execution court can dismiss an execution application if the decree put to execution is unmistakably found to suffer from an inherent lack of jurisdiction of the court rendering it a null and void in the eye of law, provided the said lack of jurisdiction must be prima facie in order to enable an executing court to conclude that the decree was a nullity.

The present judgment has brought much more clarity to the provisions of the CPC and the exercise of power by the various courts/ forums under the same.

Please find a copy of the judgement here.

This update has been contributed by Pooja Chakrabarti (Partner) and Arti Bhattacharyya (Associate).

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