Case Note & Summary
The Supreme Court of India considered an appeal by special leave against an order of the High Court dated 30 January 1992 dismissing a revision in execution proceedings. The dispute arose from a suit filed in 1978 by the respondent for recovery of possession of land from the appellants based on a declaratory decree obtained by one Nathu in 1924 as a collateral under custom. The appellants claimed they purchased the property from Rulia, an alienator to Nathu, and that the alienation was not supported by consideration and custom. The trial court dismissed the suit, but the first appellate court reversed the dismissal. The second appeal was dismissed in RSA No.2416/79. In execution, the appellants contended that since the customary right had been taken away by a later amendment, the decree passed by the appellate court was a nullity. The executing court negatived that application, and the High Court dismissed the revision, leading to the present appeal. The respondent, though served, did not appear. The legal issues were whether the High Court erred in holding that the appellants could not raise the plea of nullity in execution, and whether the amendment to the Punjab Custom (Power to Contest) Act, 1920 had retrospective effect making the decree a nullity. The appellants relied on Darshan Singh vs. t Sin Pal to argue that Section 7 of the Principal Act as amended was retrospective and applicable to pending proceedings, and that a decree without jurisdiction could be challenged at any stage, including execution. The respondent made no submissions. The Supreme Court referred to Darshan Singh v. t Sin Pal, which held that Section 7 of the Punjab Custom (Power to Contest) Act, 1920 as amended by the Amendment Act 1973 is retrospective and applicable to pending proceedings. The Court also noted that custom was confirmed and regulated by the Punjab Laws Act and the Principal Act, but was done away with by the Amendment Act; however, rights under Hindu Law remained unaffected. The Court cited Daya Ram v. Sohel Singh, Abdul Hussein Khan v. Bibi Sona Dero, and Salig Ram v. Munshi Ram for the principle that a person asserting custom must prove it, and no presumption of custom exists. The Court held that the High Court's view was incorrect because the amendment was applicable at the time the appellate court passed the decree, thus the decree was a nullity. Since the matter went to the root of jurisdiction, it could be raised in execution. The Supreme Court allowed the appeal, set aside the orders of the courts below, and dismissed the execution petition. No costs were awarded.
Headnote
A) Civil Procedure - Execution Proceedings - Decree Nullity - Punjab Custom (Power to Contest) Act, 1920, Section 7 as amended by Amendment Act, 1973 - The amendment to Section 7 was retrospective and applied to pending proceedings, rendering the appellate decree a nullity; a plea of nullity going to root of jurisdiction can be raised in execution; High Court erred in dismissing revision. Held that appeal allowed and execution petition dismissed (Paras 1-3). B) Customary Law - Burden of Proof and Personal Law - Punjab Laws Act, 1872, Section 5 and Hindu Law - Custom must be proved by the person asserting it; no presumption in favour of custom; Hindu law applies first to Hindus; amendment doing away with custom did not affect rights under Hindu Law. Held that even after custom abolished, rights under Hindu Law remain unaffected (Paras 1-3).
Issue of Consideration
Whether the High Court erred in dismissing the revision holding that the appellant could not raise the plea of nullity of decree in execution proceedings, and whether the Amendment Act of 1973 had retrospective effect making the decree a nullity
Final Decision
Appeal allowed; orders of courts below set aside; execution petition dismissed; no costs.
Law Points
- Section 7 of Punjab Custom (Power to Contest) Act
- 1920 as amended by Amendment Act 1973 is retrospective and applies to pending proceedings
- custom done away by amendment but Hindu Law rights unaffected
- decree passed without jurisdiction due to amendment is nullity and can be challenged in execution
- burden of proof lies on person asserting custom
- Hindu law applies in first instance to Hindus
