Case Note & Summary
The petitioner, original defendant No. 2 in a suit for redemption, challenged an order dated 17 August 2018 passed by the Civil Judge Junior Division, Indapur, in execution proceedings arising from a decree in RCS No. 113 of 1979. The decree, dated 6 February 1988, declared the plaintiff's ownership of the suit land and ordered redemption on payment of Rs. 1,000. The petitioner raised objections that the decree was a nullity, but the execution court allowed the decree-holder's applications (Exh. 95 and 99), set aside the stay, and directed execution to proceed. The High Court held that the execution court had jurisdiction to decide the objection regarding nullity, and that the decree was not a nullity as it was passed by a competent court. The petition was dismissed.
Headnote
A) Civil Procedure - Execution of Decree - Nullity of Decree - Objection as to validity of decree can be raised in execution proceedings - Execution court has jurisdiction to decide whether decree is nullity - Held that the decree in RCS No. 113 of 1979 was passed by a competent court and was not a nullity, and the execution court rightly rejected the objection (Paras 2-5).
Issue of Consideration
Whether the execution court can entertain an objection that the decree is a nullity and whether the impugned order setting aside stay and allowing execution was correct.
Final Decision
The High Court dismissed the writ petition, upholding the execution court's order dated 17 August 2018.
Law Points
- Execution court can decide objections as to validity of decree
- Decree not nullity if passed by competent court
- Objection to executability can be raised in execution proceedings
Case Details
2019 LawText (BOM) (03) 202
WRIT PETITION NO.13415 OF 2018
Mr. Rahul Kadam for Petitioner, Mr. K.D. Bhosale for Respondent No. 2
Nivrutti Keshav Shinde (since deceased through legal heirs)
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Nature of Litigation
Writ petition challenging order in execution proceedings
Remedy Sought
Petitioner sought to set aside the order dated 17 August 2018 allowing execution and rejecting objection that decree was nullity
Filing Reason
Petitioner objected that the decree in RCS No. 113 of 1979 was a nullity
Previous Decisions
Decree dated 6 February 1988 in RCS No. 113 of 1979; execution court order dated 17 August 2018 allowing applications Exh. 95 and 99 and setting aside stay
Issues
Whether the execution court can entertain an objection that the decree is a nullity?
Whether the decree in RCS No. 113 of 1979 is a nullity?
Submissions/Arguments
Petitioner argued that the decree was a nullity and could not be executed
Respondent No. 2 supported the execution court's order
Ratio Decidendi
An execution court has jurisdiction to decide an objection that the decree sought to be executed is a nullity. However, a decree passed by a competent court is not a nullity merely because of an error of law or fact; it is binding until set aside in appeal or revision.
Judgment Excerpts
The challenge in this Petition is to the order dated 17th August, 2018 passed by the learned Civil Judge Junior Division, Indapur.
The operative portion of this order read thus: (1) Application at Exh. 95 and 99 are hereby allowed. The stay order is set aside. (2) The objection that the decree passed in RCS No. 113 of 1979 as nullity raised by J.D is not sustainable. (3) The execution proceeding to proceed further.
Procedural History
The suit RCS No. 113 of 1979 was decreed on 6 February 1988. Execution proceedings were initiated. The judgment debtor (petitioner) filed objections that the decree was a nullity. The execution court allowed applications Exh. 95 and 99, set aside stay, and rejected the nullity objection. The petitioner challenged this order by way of writ petition before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908:
