| CITATION | AIR 2001 SC 2552 145 |
| DATE OF JUDGMENT | 24th JULY 2001 |
| COURT | SUPREME COURT OF INDIA |
| APPELANT | DHURANDHAR PRASAD SINGH |
| RESPONDENT | JAI PRAKASH UNIVERSITY AND ORS. |
| BENCH | G.B. Pattanaik & B.N. Agrawal |
INTRODUCTION
In this appeal, the appellant challenges a decision from the Patna High Court that allowed a revision application against the order of the executing court. The dispute arises from a suit where the appellant sought a declaration that the termination of their services was illegal. The executing court initially rejected objections to the executability of the decree, but after a revision, the High Court set aside the order and allowed the objections. The appellant contends that the High Court erred in ruling that the decree couldn’t be executed against the University merely because it was not a party to the original suit. The appellant argues that the University, having taken over the college during the suit, is bound by the decree. On the contrary, the Respondent-University asserts that it was the plaintiff’s duty, under Order 22 Rule 10 of the Code, to bring the University on record during the suit. The Respondent-University argues that a decree against the previous management, which no longer exists, is equivalent to a decree against a deceased person without bringing their legal representatives on record, making it void. The case involves legal intricacies regarding the devolution of interest, obligations under Order 22 Rule 10, and the implications of a decree against a party that undergoes changes during the course of litigation.
FACTS OF THE CASE
The appellant, formerly employed as a Routine-cum-Examination Clerk at Ganga Singh College, contested the termination of their services by defendant No. 2, the Secretary of the Governing Body. The appellant’s appointment, approved by the ad hoc Governing Body, was allegedly terminated in violation of Bihar University Statutes. The suit, filed for a declaration of the termination’s illegality, resulted in an exparte decree against the college’s Governing Body. Execution proceedings followed, met with objections under Section 47, including the claim that, during the suit, the college became a part of Bihar University, a fact allegedly concealed during the original proceedings. The executing court initially accepted the objection, emphasizing changes in university affiliation. After a revision, the High Court remanded the case for further evidence. Post-remand, the executing court, on September 22, 1997, rejected the objection. In a subsequent revision, the High Court set aside this decision, allowing the objection. The core dispute revolves around the High Court’s stance that the decree couldn’t be executed against the University due to non-inclusion in the original suit. The appellant argues the University, as the successor to the college’s management, is bound by the decree. The University contends the appellant, under Order 22 Rule 10, should have brought it into the suit, and a decree against the defunct management is equivalent to one against a deceased party, rendering it void. The case involves complex legal issues related to decree execution, changes in institutional status, and procedural obligations during the course of the suit.
ISSUED RAISED
- Does the failure to bring the successor-in-interest on record, in a case of devolution of interest during the pendency of a suit as per Order 22 Rule 10 of the Code, render a decree passed against the predecessor-in-interest a nullity? Can such a decree be executed against the person who was not impleaded as a party, or does it lack legal validity?
- Is the application under Order 22 Rule 10, seeking leave of the Court, mandated by law to be filed exclusively by the person upon whom the interest has devolved during the pendency of the suit, and is it impermissible for any other individual to file such an application?
CONTENTIONS OF APPEALLENT
According to the appellant, Rules 3 and 4 deal with situations where a party dies, and the right to sue survives. In such cases, the court must be approached with an application to substitute legal representatives, and if not done within the prescribed time, the suit abates. In contrast, Rule 10 covers cases of assignment, creation, and devolution of interest during the pendency of a suit, and it allows the suit to continue with the leave of the court by or against the person upon whom the interest has devolved. The appellant argues that the legislature, by not prescribing a specific procedure for failure to apply for leave under Rule 10, intended for the suit to continue with the original party unless it is shown that the original party did not vigorously prosecute or colluded with the adversary to the detriment of the person upon whom the interest devolved.
The appellant also relies on precedents, such as the case of Sm. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi, to support the argument that if a suit is pending when the transfer in favor of a party was made, it does not affect the result when no application has been made to bring the successor on record during the pendency of the suit.
Furthermore, the appellant contends that the High Court’s reliance on Section 47 of the Code is misplaced, as the decree is not void ab initio but may be voidable. The appellant argues that the executing court can allow an objection to the executability of the decree only if it is found to be a void ab initio and a nullity. The appellant distinguishes between void and voidable acts, emphasizing that the decree in question falls into the category of voidable acts, which remains good until set aside.
CONTENTIONS OF RESPONDENT
The respondent argues that the appellant did not follow the proper legal procedure by failing to obtain the court’s leave under Order 22 Rule 10 of the Code. They assert that the original decree against the governing body of the College, without impleading the University as the successor-in-interest, is void ab initio. The respondent contends that executing the decree against the University, without proper legal proceedings, is unjust and unfair. They rely on Section 47 as an appropriate remedy to challenge the executability of the allegedly invalid decree. The respondent suggests that if the appellant believes the decree can be executed against the University, they should initiate legal proceedings, such as setting aside the original decree or seeking a declaration from the court.
JUDGMENT
The legal opinion or a part of a judgment discussing various legal principles, cases, and procedural matters. The text covers topics such as jurisdiction, the concept of void and voidable acts, the distinction between them, the powers of different courts under specific legal provisions, and the interpretation of Order 22 Rule 10 of the Code of Civil Procedure.
Jurisdiction:
The text discusses a case involving the Court of the Marshalsea, arguing that the court acted without jurisdiction because it entertained a suit between two citizens who were not members of the King’s household, which was the court’s limited jurisdiction. The principle is highlighted that a court’s jurisdiction must be valid at the outset of proceedings.
Void and Voidable Acts:
The distinction between void and voidable acts is discussed, with examples provided. Void acts are those without jurisdiction and are nullities, while voidable acts may be valid until set aside.
Validity of orders:
The text cites a case where the House of Lords considered the validity of an order passed by the Secretary of State, emphasizing the difference between an order being void or voidable.
Application of Section 47 of the Code:
The text discusses the narrow scope of Section 47 of the Code of Civil Procedure, stating that the executing court can allow objections only if the decree is void ab initio and a nullity.
Order 22 Rule 10:
The interpretation of Order 22 Rule 10 of the Code is discussed, emphasizing that leave of the court is required for the continuation of a suit when there is an assignment, creation, or devolution of interest during its pendency.
Applicability of Leave:
The text argues that leave can be sought not only by the person upon whom the interest has devolved but also by the plaintiff or any other party or person interested.
Conclusion
In conclusion, the passage discusses legal principles related to jurisdiction, void and voidable acts, and procedures for the assignment or devolution of interests during a lawsuit. It emphasizes the importance of jurisdiction at the outset of legal proceedings, distinguishes between acts that are void and voidable, and refers to relevant cases and legal provisions. Ultimately, it argues against the High Court’s decision to allow an objection under Section 47 of the Code of Civil Procedure, asserting that the executing court can only reject the executability of a decree if it is void ab initio. The passage concludes by stating that the High Court’s decision was not justified, and it directs that the parties bear their own costs.
Reference
https://indiankanoon.org/doc/23005501/
Written by Rani Kumari an intern under legal vidhiya
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