2025 INSC 175
SUPREME COURT OF INDIA
(HON’BLE J.B.
PARDIWALA, J. AND HON’BLE R. MAHADEVAN, JJ.)
BHUDEV MALLICK ALIAS
BHUDEB MALLICK & ANR.
Petitioner
VERSUS
RANAJIT GHOSHAL &
ORS.
Respondent
Civil
Appeal No.2248 OF 2025(@ Special Leave to Appeal (C) No.21328 of 2023)-Decided
on 17-01-2025
Civil, CPC
(A)
Civil Procedure Code, 1908, Order 21 Rule 32(1) – Execution of decree for
injunction – Order for detention of JD in civil prison – Held what is required
of the person seeking execution of the decree for injunction under the sub-
rule is to place materials before the executing Court as would enable it to
conclude (i) that the person bound by the decree, was fully aware of the terms
of the decree and its binding nature upon him; and (ii) that that person has
had an opportunity of obeying such decree, but has wilfully, i.e., consciously
and deliberately, disobeyed such decree, so that it can make an order of
his detention as sought for - Thus, the onus of placing materials before the
executing Court for enabling it to record a finding that the person against
whom the order of detention is sought, has had an opportunity of obeying the
decree for injunction, but has wilfully disobeyed it, lies on the person
seeking such order of detention, lest the person seeking deprivation of the
liberty of another cannot do so without fully satisfying the Court about its
need - Executing court has proceeded to make the order of arrest, detention in
a civil prison for a period of 30 days and attachment of property against the
appellants herein when there was absolutely no material placed by the
respondents herein to satisfy it that the appellants have had an opportunity of
obeying the decree for injunction, but have wilfully disobeyed it - In fact,
the order of arrest and detention made by the executing court is based on a
surmise that the respondents (decree-holders) have levelled allegations that
the appellants herein are interfering with their peaceful possession of the
property in question and in this regard, few complaints of breaches made to the
police were placed before the executing court - The executing court proceeded
merely on the basis of the assertions made by the respondents that the
appellants herein are trying to interfere with their peaceful possession of the
suit property without any further inquiry into the matter - Impugned order
passed by the High Court held to be unsustainable in law and liable to be set
aside and also that of the executing court - It shall be open for the
respondents (decree-holders) to file a fresh application if at all there is any
interference at the instance of the appellants herein (judgment-debtors) in so
far as their possession of the property in question is concerned - If any such
fresh application is filed, the executing court shall look into the same
strictly keeping in mind the observations made by this Court in this or- der
and decide the same on its own merits.
(Para 50 to 52, 60 and 61)
(B)
Civil Procedure Code, 1908, Order 21 Rule 32 – Limitation Act, 1963, proviso
to Section 136 - Decree of permanent injunction – Execution of – Held that a decree of
permanent injunction is executable with the aid of the provisions contained in
Order 21 Rule 32 of the Code, and any act in violation or breach of decree of
permanent injunction is a continuing disobedience entailing penal consequences
- There is no force in the argument of the learned counsel appearing for the
appellants that the execution case could not have been instituted by the
respondents herein after a period of 40 years from the date of passing of the
decree in the original Title Suit - The decree for permanent injunction can be
enforced or becomes enforceable when the judgment debtor tries to disturb the
peaceful possession of the decree holder or tries to dispossess the decree
holder in some manner or the other or creates obstruction in the peaceful
enjoyment of the property over which he has a declaration of title from the
civil court in the form of a decree - The proviso to Section 136 of
the Limitation Act makes it further clear that for the enforcement or
execution of a decree granting a perpetual injunction shall not be subject to
any period of limitation
(Para 30, 41 and 43)
(C)
Civil Procedure Code, 1908, Section 115 – Constitution of India, Article 227-
Revisionary jurisdiction – Supervisory jurisdiction – Jurisdictional error
- If an error, be it an error of fact or of law, is such that the erroneous
decision has resulted in the subordinate Court or tribunal exercising
jurisdiction, not vested in it by law, or in its having failed to exercise
jurisdiction, vested in it by law, that will come within the scope of Section
115 of the Code or, for the matter of that, of Article 227 of the
Constitution, as the case may be - This error may have resulted from a
violation of rules of natural justice, by taking into consideration matters
which are extraneous and irrelevant, or by substituting judicial consideration
by bias, based on suspicion, arising from those extraneous matters or from any
other cause whatsoever but if it has affected the assumption or exercise
of jurisdiction, as envisaged above, it will be a jurisdictional error for
purposes of the above Article - There is
no exhaustive list of jurisdictional errors, but case law has identified such
an error exists when a decision- maker has: · identified a wrong
issue; · asked a wrong
question; · ignored relevant
material; · relied on irrelevant
material; · failed to observe a
requirement of procedural fairness; · made a decision involving fraud;
· made a decision in
bad faith; · made a decision
without evidence; · applied a policy
inflexibly.
(Para
55 and 56)
ORDER
1.
Heard the learned counsel appearing for the parties.
2.
Exemption Application is allowed.
3.
Leave granted.
4.
This appeal arises from the order passed by the High Court of Judicature at
Calcutta dated 23.09.2019 in CO. No. 3283 of 2019 by which the High Court
rejected the CO filed by the appellants herein (judgment debtors) and thereby
affirmed the order passed by the Executing Court dated 4.9.2019 in Title
Execution Case No. 1 of 2017 arising out of Title Suit No. 25 of 1965.
5.
For the sake of convenience, the appellants herein shall be referred to as the
judgment debtors and the respondents herein shall be referred to as the decree
holders.
6.
The facts giving rise to this appeal may be summarised as under:
i. In 1965, the
predecessor-in-interest of the decree holders herein instituted a Title Suit
No. 25 of 1965 for confirmation of possession and in the alternative
for recovery of possession based on title to the suit land and for
permanent injunction. The respondents herein are the legal heirs of the
original plaintiffs of the Title Suit No. 25 of 1965 referred to above. The
Subordinate Judge 2nd Court, Hooghly decreed the suit vide the judgment and
decree dated 26.06.1976. The operative part of the decree reads thus:
“Considering the
facts, circumstances and evidence on record I, therefore, hold that the
plaintiff has been able to establish his title to the suit properties and
possession follows title and the defendant has failed to prove his alleged
title. So he had no occasion to disturb plaintiffs possession of the suit
properties. The plaintiff is therefore, entitled to have a declaration of title
and confirmation of possession and injunction with respect to peaceful
possession of the suit properties against the defendants. The suit is also
maintainable, issue nos.2 to 5 are thus disposed of with a remarks that there
is no need for consideration of alternative prayer for recovery of possession
in the aforesaid context.
Issue No.6:-
In the result the suit
succeeds.
Court
fees paid upon the plaint sufficient. Hence,
ORDERED
That the suit is
decreed on contest with costs against defendant no. 1 Ka to Jha and 2 and
without contest and without cost against the rest. Plaintiff's title with
respect to Ka and Kha schedule is hereby declared and his possession thereof is
hereby confirmed. The defendants are permanently restrained from disturbing
possession of the plaintiff of the suit properties. The prayer for damage etc.
is rejected under the present frame of the suit.”
ii. Thus, the
appellants herein were permanently restrained from disturbing the peaceful
possession of the respondents herein in so far as the suit property is
concerned.
iii. The appellants
herein being dissatisfied with the judgment and decree dated 20.06.1976
referred to above, challenged the same by filing Title Appeal No. 214 of 1976.
The record does not
reveal in what manner the Title Appeal came to be disposed of, however,
according to the appellants, the same was disposed of by the Appellate Court
vide order dated 10.06.1980.
iv. Sometime in the
year 2017, i.e., after a period of almost 40 years, the respondents herein
filed an Execution Case seeking to execute the decree dated 26.06.1976 referred
to above on the ground that the appellants herein were disturbing &
creating trouble in their peaceful enjoyment of the property and thereby
alleged that the appellants have committed breach of the decree of permanent
injunction. The same came to be registered as Title Execution Case No. 1 of
2017. The appellants were served with the summons of the suit execution case.
v. The application
filed by the respondents herein (decree holders) which came to be registered as
Execution Case No. 1 of 2017 concerning title Suit No. 25/1965 reads thus:
“IN THE COURT OF THE
LD. CIVIL JUDGE SENIOR DIVISON AT ARAMBAGH, HOOGHLY Executive Case No. 2017
concerning Title Suit No. Heirs of Late Choto Chandi Charan Ghosal and
heirs of the said property 1 : Shri Ajit Kumar Ghoshal 2: Sri Ranjit Ghoshal
father of 1 and 2 Late Choto Chandi Charan Ghoshal 3: Anup Kumar Ghoshal son of
Shri Swapan Ghoshal 4: Sri Arup Kumar Ghoshal 5: Sri Guru Charan Ghoshal father
of 4 & 5 Sri Dilip Kumar Ghoshal 6: Sri Rabindra Nath Ghoshal son of Shri
Asit Kurriar Ghoshal all residents of Harihar Post Debkhand PS Goghat
District Hooghly 1/ Jaidev Mallick 2/ Mahadev Mallick 3/ Bhoot Mallick aka
Bhudev Mallick aka Sahadev Mallick 4/ Laxman Chandra Mallick all S/o Late
Nagendranath Mallick all resident of Harlhar, Post Debkhand PS Goghat, District
Hooghly. 26/06/1976 AD Settlement 10/06/1980
-no-
-no-
-no-
-no-
Mallick 4/ Laxman Chandra Mallick all S/o
Nagendranath Mallick all resident of Harihar, Post Debkhand PS Go ghat,
District Hooghly.
The defendants/debtors
wilfully defying the Permanent Restraining order of the Court and creating
obstacles to the peaceful possession of the plaintiff decree holder's property
by the heirs of the plaintiff decree holder. Therefore, the instant petition is
being field with the prayer that the Defendants/Debtors must be stopped from
creating obstacles to the peaceful possession of the property by the heirs of
the decree holders and the order/direction may also kindly be issued for
sending the Defendants/Debtors to Civil Jail and their property should also be
attached and auctioned so that the debtors cannot create obstacles on
possession of the property of plaintiff 'decree holder's heirs by breaking the
perpetual restraining order of the trial court and court assistance is required
to attack and auction their property and to send them to Civil Jail.”
vi. It is the case of
the appellants that although the summons was received by them yet due to
non-availability of old records they were not in a position to appear before
the court concerned and later learned that the execution case was fixed by the
court for ex parte disposal. On 12.12.2018, the appellants herein filed their
written objections to the execution case along with a petition requesting to
accept the written objections & give them an opportunity of hearing.
vii. The written
objections lodged in writing by the appellant herein (judgment debtors) read
thus:
“Objection
against Application for Execution filed by the Decree Holders
1. That the
application for Execution flied by the Decree Holders with respect to the
original suit Is not maintainable.
2. That the
application Is vague and Indistinct. The decree holders in their petition has
not stated the schedule of property and hence It 1s ambiguous and since the
petition Is handwritten it 1s 1lleglble to a huge extent and should be
rejected.
3. That the properties
described in the schedule of the plaint of the original suit was purchased by
the predecessor of the Judgement debtors and at no point of time was possessed
by the decree holders or their predecessors. The decree holders have obtained
the judgement and decree on 26.06.1976 but even then they did not possess the
suit property. The properties were all along in possession of the judgement
debtors which was unaffected and even after procuring the alleged decree from
the Ld. Lower Court the decree holders did not possess the same till today.
Thus after such a long time the decree holders could not pray for relief for
alleged violation of any order of injunction.
4. That after
obtaining the alleged judgement and decree on 26.06.1976 the decree holders
have filed several cases before the Ld. Executive Magistrate and In almost
every case the possession of the Judgement debtors have been confirmed.
5. That the decree
holders in order to snatch possession of the suit properties from the judgement
debtors have filed the instant petition at this belated stage knowing very well
that they never possessed the property. Moreover the decree holders in several
applications have stated that they did not have possession over the suit
properties.
6. That unless the
truth regarding the possession comes before the Ld. Court the Instant execution
Is not maintainable.
7. That the decree holders are putting forth
claim on the basis of erroneous record of rights whereas the judgement debtors
have come to own the suit properties by virtue of purchase. The judgement
debtors have much better title than the decree holders which can be ascertained
by seeking evidence.
8. That since the,
decree holders did not clalh1 possession over the suit properties the judgement
debtors have been openly, as of their own right, uninterruptedly, without any
protest from the decree holders have been possessing the suit tank since
purchase and later on since 10.06.1980 i.e. from the date of disposal of the
appeal case. The decree holders are thus stopped from putting forth illegal
claim over the suit properties. Without taking due process of law the Ld. Court
and in absence of due proceeding the Ld. Court could not pass any order in this
case.
9. That the Judgement
debtors. will be put to Irreparable loss and injury if the execution
application filed by the decree holders Is entertained.
10. That since the
petition is illegible and since the order in the original suit has been passed
more than 40 years ago the judgement debtors crave leave to file additional
written objection if found necessary for proper adjudication of this case.
In the above
circumstances the judgement debtor pray that the Ld. Court be kind enough to
reject the execution application flied oy the decree holder.
AFFIDAVIT
I Shri Bhudeb Mallik,
s/o Late Nagendranath Mallik, aged about 55 years, by faith Hindu, by
occupation cultivation, residing at viii-Harihar, p.o. - Debkhanda, p.s. -
Goghat, dist - Hooghly do hereby solemnly affirm and declare that the
statements made by me above are true to the best of my knowledge and belief.”
viii. On 21.01.2019,
the Executing Court declined to take the written objections on record saying
that the same were not maintainable. The court fixed the matter for final
arguments on 25.01.2019. The appellants being aggrieved by the order dated
21.09.2019 referred to above, preferred a Revision Application being C.O. No.
1120 of 2019 before the High Court. The High Court vide order dated 27.03.2019
admitted the Revision Application and stayed all further proceedings of the
Title Execution Case No. 1 of 2017.
ix. Later the
appellants herein filed an application being CAN 74 of 2019 dated 26.07.2019 in
the High Court seeking extension of the interim order dated 27.03.2019 referred
to above and accordingly informed the trial court about the pendency of the
Revision Application being C.O. No. 1120 of 2019 and the Application being CAN
74 of 2019 filed for extension of the interim order dated 27.03.2019.
x. However, on
4.09.2019, the Civil Judge Arambagh proceeded to pass an Order 21 in Title
Execution Case against appellants herein by allowing the execution case ex
parte. The Civil Judge ordered that the appellants herein (judgment debtors)
shall be arrested and detained in civil prison for a period of 30 days and
their property be attached in accordance with law.
xi. The order passed by the Civil Judge referred to
above reads thus:
“Order No.21 dated
04.09.2019 The plaintiffs file hazira.
The fact of the case
in short is that this is a case for execution of permanent injunction passed by
the Ld. Second Court of the Subordinate Judge, Hooghly, in T.S. No.25 of 1965.
The plaintiffs of the original suit got the decree of permanent injunction in
the form of permanent restrainment of the
defendant/judgment
debtors from disturbing possession of the plaintiffs in the suit property as
well as the property over which the execution is prayed for.
The present
petitioners are the legal heirs of the deceased Chota Chandicharan Ghoshal i.e.
the original plaintiff of the said T.S. 25 of 1965.
The present execution
case, prays in made by execution application dated 25.11.2017, praying for
execution of contested judgment and decree in T.S. no.25/1965, dated
26.06.1976, of the Ld. Second Court of the. Subordinate Judge, Hoogly. It is
averred in the application that the Jdrs. are willfully, in violation of the
decree, disturbing the peaceful possession of the Dhrs upon decretal property
and thus it is necessary to execute the same by relief of Civil Jail as well as
attachment and sale of the properties of Jdrs.
In argument Ld.
Counsel for the Dhr Submits that they were granted a contested decree of
declaration and permanent injunction, but the Jdrs are willfully violating the
same, and which is apparent from the evidence on record and thus the decree
maybe put into execution by putting the Jdrs in Civil Jail and by attachment of
their properties. In this regard, the Ld. Counsel cited the landmark judgment
passed by Ld. Punjab Haryana High court on 9th October, 1979 and which is
published in AIR 1980 P and H. The impugned decree filed along with the
execution application shows that the present applicants are Dhrs and that the
defendants of the suit are Jdrs. The same was decreed on contest on 26.06.1965
declaring the title of the plaintiff/Dhrs in respect of the suit property and
confirming their possession. The defendants/Jdrs were restrained by way of
permanent injunction from disturbing possession of the plaintiff m the suit
property.
It is noted that the
Jdrs had appeared in such case and have knowledge of all averments reports.
Moreover, the decree was contested decree. The police report shows that despite
the decree, the Jdrs are claiming forceful possession. In Iyyam
Perumal Vs Chinna Gounder, (1984) it was observed that direction of arrest may
be restored to if there is adequate proof of refusal to comply with a decree
inspite of Jdrs possessing sufficient means to satisfy the same. Thus, there
are enough circumstances to put the decree into execution as prayed for. Hence,
it is,
ORDER
That the execution case is allowed ex-parte
and the Judgment Debtors are directed to be arrested and detained in civil
prison for a period of thirty days and also to attach judgment Debtors
properties as per the provision of law.
Thus this T.Ex.Case is
disposed of.”
xii. The appellants
herein being dissatisfied with the order passed by the Civil
Judge referred to above, challenged the same by filing Revision
Application No. COC 283 of 2019 before the High Court invoking its supervisory
jurisdiction under Article 227 of the Constitution.
xiii. The High Court
vide its impugned order dated 23.09.2019 rejected the revision application and
thereby affirmed the order passed by the Civil Judge referred to above.
xiv. The High Court in its impugned order observed
thus:
“The present challenge
is directed at the behest of the judgment-debtors of a decree for permanent
injunction.
Learned counsel
appearing for the petitioners argues that in view of the application filed for
arrest and detention in civil prison of the petitioners, the same ought to have
been - governed under Order XXI Rule 11A of the Code of Civil Procedure,
which, it is argued, contemplates an affidavit being filed, stating the ground
on which arrest is applied for. In the absence of such an affidavit in the present
case, the executing court acted without jurisdiction in allowing the execution
case.
The next contention of
learned counsel for the petitioners is that the petitioners' written objection
to the application for execution was not accepted due to delay, which was
challenged in a civil revisional application before this Court.
Although the petitioners
prayed for stay of the execution case in view of pendency of an application for
extension of stay granted in the previous revisional application, the executing
court acted in hot haste in passing the impugned order, which was thus
vitiated on such ground as well.
Learned counsel
appearing for the decree-Holders, on the other hand, points out that the
previous revisional application challenging the non-acceptance of written
objection by the present petitioners was dismissed by a co-ordinate bench on
the ground that the same had become infructuous in view of passing of the order
impugned herein. As such, there is no challenge existing at present to the
order refusing to accept the written objection of the petitioner.
In such view of the
matter, the argument, that the petitioner did not get any opportunity to file
written 'objection, has been rendered academic since there is no existing
challenge pending against the same.
Moreover, a plain
reading of Rule 11A of Order XXI of the Code suggests that the same envisages
an application being made for the arrest and detention in prison of the
judgment-debtors, stating the grounds on which arrest is applied for, or be
accompanied by an affidavit stating such grounds.
The language of Order
XXI Rule 11A of the Code suggests clearly that the grounds for arrest and
detention may be contained either in the application or in the accompanying
affidavit.
In the present case,
the execution application itself contained the ground, sufficient to entitle
the executing court to pass an order of execution of the· decree for permanent
injunction.
As such, no
jurisdictional error was committed by the executing court in passing the
impugned order.
Accordingly, C.O. No.
3283 of 2019 is dismissed on contest.
There will be no order
as to costs.
At this juncture,
learned counsel for the petitioners prays for stay of the instant order for a
limited period.
However, since, in the
opinion of this Court, no question of law of substantial importance is involved
in this case, the prayer for such stay is refused.”
7. In
such circumstances referred to above, the appellants herein (judgment
debtors) are here before this Court with the present appeal.
SUBMISSIONS
ON BEHALF OF THE APPELLANTS (JUDGMENT DEBTORS)
8.
Mr. Joydeep Mukherjee, the learned counsel appearing for the appellants
vehemently submitted that the High Court committed an egregious error in
passing the impugned order. He submitted that the execution petition itself was
not maintainable at the instance of the respondents after a lapse of almost 40
years from the date of passing of the decree of declaration and permanent
injunction.
9.
He submitted that the Civil Judge committed a serious error in directing arrest
of the appellants herein and their detention in civil prison for a period of 30
days with further order to attach their property.
10.
The main bone of contention canvassed on behalf of the appellants herein is
that the respondents had not filed any petition along with an affidavit as the
same is a mandatory requirement under Order XXI Rule 11-A of the Code of
Civil Procedure, 1908 (for short, “the Code”).
11.
He further submitted that the aforesaid aspect came to be overlooked even by
the High Court while rejecting the revision application.
12.
The learned counsel in the last submitted that the High Court should have at
least permitted the appellants herein to file their written objections to the
execution case.
13.
In such circumstances referred to above, the learned counsel prayed that there
being merit in his appeal the same may be allowed and the impugned order
passed by the High Court and also the one passed by the civil court in
execution case be set aside.
SUBMISSIONS
ON BEHALF OF THE RESPONDENTS (DECREE HOLDERS)
14.
On the other hand, Mrs. Lalita Kaushik, the learned counsel appearing for the
respondents vehemently submitted that no error not to speak of any error of law
could be said to have been committed by the High Court in passing the impugned
order.
15.
The learned counsel would submit that the contention on behalf of the
appellants that the execution petition could not have been filed after 40 years
from the date of the original decree is without any merit. She would submit
that once there is a decree of permanent injunction having attained finality;
if thereafter at any point of time, the possession of the decree holders is
sought to be disturbed then in such circumstances it is always open for the
decree holder to seek appropriate relief from the court in accordance with law.
16.
In such circumstances referred to above, the learned counsel prayed that
there being no merit in this appeal, the same may be dismissed.
ANALYSIS
17.
Having heard the learned counsel appearing for the parties and having gone
through the materials on record the only question that falls for our
consideration is whether the High Court committed any error in passing the
impugned order.
18.
Before adverting to the rival contentions raised on either side, it is
necessary for us to look into few relevant provisions of the Code.
19. Section
51 of the Code prescribes the powers of the court to enforce
execution. Section 51 of the Code reads thus:-
“51. Powers of Court
to enforce execution.—Subject to such conditions and limitations as may be
prescribed, the Court may, on the application of the decree-holder, order
execution of the decree—
(a) by delivery of any
property specifically decreed;
(b) by attachment and
sale or by the sale without attachment of any property;
(c) by arrest and
detention in prison for such period not exceeding the period specified
in section 58, where arrest and detention is permissible under that
section;
(d) by appointing a
receiver; or
(e) in such other
manner as the nature of the relief granted may require:
Provided that, where
the decree is for the payment of money, execution by detention in prison shall
not be ordered unless, after giving the judgment- debtor an opportunity of
showing cause why he should not be committed to prison, the Court, for reasons
recorded in writing, is satisfied—
(a) that the
judgment-debtor, with the object or effect of obstructing or delaying the
execution of the decree,—
(i) is likely to abscond
or leave the local limits of the jurisdiction of the Court, or
(ii) has, after the
institution of the suit in which the decree was passed, dishonestly
transferred, concealed, or removed any part of his property, or committed any
other act of bad faith in relation to his property, or
(b) that the
judgment-debtor has, or has had since the date of the decree, the means to pay
the amount of the decree or some substantial part thereof and refuses or
neglects or has refused or neglected to pay the same, or
(c) that the decree is
for a sum for which the judgment-debtor was bound in a fiduciary capacity to
account.
Explanation.—In the
calculation of the means of
the judgment-debtor for the purposes of clause
(b), there shall be
left out of account any property which, by or under any law or custom having
the force of law for the time being in force, is exempt from attachment in
execution of the decree.”
20.
There is no substantial change in the above quoted Section by the Amendment Act
of 1976 except addition of words “for such period not exceeding the period
specified in Section 58 where arrest and detention is permissible
under that section” in Clause (c). In the unamended Section, there was no
provision as to the period for which a debtor may be detained in a civil
prison. That lacuna is now removed by the addition of this clause. The addition
seeks to make the provision harmonious with Section 58.
21. Calcutta High
Court Amendment : In clause (b) omit the words, “or by sale without attachment”
between the words “sale” and “of any”. In the proviso, omit the words “for
reasons recorded in writing” after the words “the Court” and before the words “is
satisfied”. Also, add the proviso– “Provided also that the Court of Small
Causes of Calcutta shall have no power to order execution of a decree by
attachment and sale of immovable property or by appointing a receiver in
respect of such property.”
22. Section
51 defines the jurisdiction and power of the court to enforce execution.
The manner of execution of a decree is laid down in the First
Schedule. The Section enumerates in general terms various modes by which the
court may order execution of a decree according to the nature of relief granted
in favour of a decree-holder.
23.
After the decree-holder files an application for execution of a decree,
the executing court can enforce execution. A decree may be enforced by delivery
of any property specified in the decree, by attachment and sale or by sale
without attachment of any property, or by arrest and detention in a civil
prison of the judgment-debtor or by appointing a Receiver, or by effecting
partition, or in such other manner as the nature of the relief may require.
24. Sections
51 and 58 respectively should be read together. Section
51 defines the power and jurisdiction of the executing court to enforce
execution, Section 58 fixes the period for which the judgment-debtor
can be detained in a civil prison.
25.
Order XXI Rule 32 of the Code reads thus:-
“32. Decree for
specific performance for restitution of conjugal rights, or for an injunction.—
(1) Where the party
against whom a decree for the specific performance of a contract, or for
restitution of conjugal rights, or for an injunction, has been passed, has had
an opportunity of obeying the decree and has wilfully failed to obey it, the
decree may be enforced 1 [in the case of a decree for restitution of conjugal
rights by the attachment of his property or, in the case of a decree for the
specific performance of a contract or for an injunction] by his detention in
the civil prison, or by the attachment of his property, or by both.
(2) Where the party
against whom a decree for specific performance or for an injunction has been
passed is a corporation, the decree may be enforced by the attachment of the
property of the corporation or, with the leave of the Court, by the detention
in the civil prison of the directors or other principal officers thereof, or by
both attachment and detention.
(3) Where any
attachment under sub-rule (1) or sub-rule (2) has remained in force for 2 [six
months,] if the judgment-debtor has not obeyed the decree and the decree-holder
has applied to have the attached property sold, such property may be
sold; and out of the proceeds the Court may
award to the decree holder such compensation as it thinks fit, and shall pay the
balance (if any) to the judgment-debtor on his application.
(4) Where the
judgment-debtor has obeyed the decree and paid all costs of executing the same
which he is bound to pay, or where, at the end of 2 [six months] from the date
of the attachment no application to have the property sold has been made, or if
made has been refused, the attachment shall cease.
(5) Where a decree for
the specific performance of a contract or for an injunction has not been
obeyed, the Court may, in lieu of or in addition to all or any of the processes
aforesaid, direct that the act required to be done may be done so far as
practicable by the decree-holder or some other person appointed by the Court,
at the cost of the judgment-debtor, and upon the act being done the expenses
incurred may be ascertained in such manner as the Court may direct and may be
recovered as if they were included in the decree.”
26.
Sub-rule (1) of Rule 32 states that where a decree is for specific performance
of a contract, or for an injunction, and the judgment-debtor wilfully disobeys
such decree, it may be executed by attachment of property of the
judgment-debtor or by his detention, or by both.
27.
Sub-rule (2) declares that where in a decree for specific performance or for
injunction, the judgment-debtor is a corporation, it may be enforced by
attachment of the property of the corporation, or with the leave of the court
by detention of the directors or other principal officers or by both,
attachment and detention.
28.
Sub-rule (3) provides for sale of attached property and payment of the
sale-proceeds to the decree-holder where the attachment remains in force for
six months and the judgment- debtor fails to obey the decree.
29.
Sub-rule (4) deals with cases where the judgment-debtor obeys the decree or the
decree-holder commits default.
30.
Sub-rule (5) empowers the executing court to take appropriate action for
enforcing the decree at the cost of the judgment-debtor who wilfully disobeys
such decree.
31.
The Explanation clarifies that the expression “the act required to be done”
covers prohibitory as also mandatory injunctions.
32.
Order XXI Rule 11-A of the Code reads thus:-
“11-A. Application for
arrest to state grounds.— Where an application is made for the arrest and
detention in prison of the judgment-debtor, it shall state, or be accompanied
by an affidavit stating, the grounds on which arrest is applied for.”
33.
The proviso to Section 51, as inserted by the Code of Civil Procedure (Amendment)
Act, 1936 (Act 21 of 1936) limited the grounds on which a judgment-debtor could
be arrested or detained.
34.
The Law Commission considered the amendment of 1936 and stated:-
“This is new.
Since Section 51, proviso, now limits the grounds on which a
judgment-debtor can be arrested (after the 1936 amendment), it is desirable to
provide that the application under Order XXI, Rule 11 should state the grounds
on which arrest is sought for. This will assist the court in taking action
under Order XXI, Rule 37 (notice to show cause), and also further proceedings
under Order XXI, Rule 40. It has been held that the existence of the
circumstances mentioned in Section 51, proviso
(a) to (c) should be
alleged either in the execution application or in an accompanying affidavit.
Unless such a circumstance is alleged (it was pointed out), the court
cannot think of the circumstances and, in its absence, the court cannot take
action under XXI, Rule 37.”
35.
Rule 11-A states that where an application is made for the arrest and detention
of the judgment-debtor, it must state or accompanied by an affidavit -
specifying the grounds on which arrest is sought. Rule 11-A of Order 21 is in
conformity with the substantive provisions of proviso to Section 51 of
the Code. Stating of grounds or filing of affidavit is essential. The provision
is thus mandatory and unless it is complied with, no arrest or detention of the
judgment-debtor can be ordered. But if the requisite affidavit is not filed by
the decree-holder, the court should afford an opportunity to him to file such
affidavit.
36.
It is well settled that a decree of permanent injunction is executable with the
aid of the provisions contained in Order XXI Rule 32 of the Code referred
to above, and any act in violation or breach of decree of permanent injunction
is a continuing disobedience entailing penal consequences.
37. In Jai
Dayal And Others v. Krishan Lal Garg and Another reported in (1996) 11 SCC
588, this Court considered the effect of decree of permanent injunction as well
as the scope of provisions of Order 21 Rule 32 of the Code and held as under:-
“6. It is contended
that the High Court has proceeded on the premise that the rights of parties are
required to be adjudicated under Section 22 of the Easements Act. The
view of the High Court is clearly in error. It is seen that once the decree of
perpetual injunction and mandatory injunction has become final, the judgment-debtor
is required to obey the decree. In whatever form he obstructs, it is liable to
removal for violation and the natural consequence is the execution
proceedings under Order XXI, Rule 32, CPC which reads as under:
"32.(3) Where any
attachment under sub-rule (1) or sub-rule (2) has remained in force for six
months if the judgment-debtor has not obeyed the decree, if the decree-holder
has applied to have the attached property sold, such property may be sold; out
of the proceeds the Court may award to the decree-holder such compensation as
it thinks fit, and shall pay the balance, if any, to the judgment- debtor on
his application.
(4) Where the
judgment-debtor has obeyed the decree and paid all costs of executing the same
which he is bound to pay, or where, at the end of six months from the date of
the attachment, no application to have the property sold has been made, or if
made has been refused, the attachment shall cease."
7. In this case, since
the attachment was made for enforcement of the perpetual injunction and
mandatory injunction, the decree is required to be complied with. In case he
did not obey the injunction under Clause (1) of Order 32, the judgment-debtor
is liable to detention in the civil prison and also to proceed against the
property under attachment.”
(Emphasis supplied)
38.
The High Court of Rajasthan in Maga Ram And Another v. Kana Ram And
Others reported in AIR 1993 Rajasthan 208, held as under :
“3. A perusal of the
decree under execution shows that it was for mandatory as well as for
prohibitory injunction. It stood satisfied so far it concerned with mandatory
part of the injunction by the removal of the encroachment existing on the
disputed land on the date on which it was passed. The decree in respect of
prohibitory injunction was subsisting even after the disposal of first and
second execution applications. The third execution application has been moved
for the execution of the decree in respect of the prohibitory injunction. It is
perfectly executable under O. XXI, R. 32, C.P.C.
4. There is also no
substance in the second objection relating to limitation. Art.
136, Limitation Act, deals with the limitation for execution of decrees
other than a decree granting mandatory injunction.
The limitation is 12
years from the date the decree becomes enforceable. The decree for
prohibitory injunction become enforceable when the judgement- debtors made
fresh encroachment on the disputed land. The decree under execution itself was
passed on September 20, 1983. As such the third execution application was well
within limitation.” (Emphasis supplied)
39.
The High Court of Bombay in the case of Shri Benedito (Betty) Dias v. Armando
Benedita Fernandes reported in 2017(4) AIR Bom. R 381, held as under:-
“12. The decision of
the Kerala High Court, in the case of M.G. Simon (supra), cannot take the case
of the petitioners any further and in fact, would assist the respondents. In
that case also, it has been held that an application for enforcement of the
decree granting prohibitory injunction shall not be subject to any period of
limitation and where there is a composite decree, granting mandatory and
prohibitory injunction, one part is subjected to limitation period of three
years, whereas the other is not subjected to any period of limitation. The
petitioner can enforce the prohibitory injunction, whenever violation of that
part takes place.
13. In the case
of Jai Dayal (supra), the Hon'ble Supreme Court has held that once
the decree of perpetual and mandatory injunction has become final, the judgment
debtor is required to obey the decree and a party cannot and should not, by his
action be permitted to drive the decree holder to file a second suit. It has
been inter-alia held that non-compliance is a continuing disobedience in
respect of which a separate/fresh suit is barred under Section 47 of
the CPC. Thus, in my considered view, the contention based on the execution
being barred by limitation, cannot be accepted.”
(Emphasis
supplied)
40.
The High Court of Punjab and Haryana in the case of Dilbagh Singh and
Others v. Harpal Singh Alias Harpal Singh Chela and Others reported in
2020 Supreme (P&H) 944, has held as under:-
“6. Although learned
counsel for the petitioners has laid much stress on the fact that to seek
execution of the decree, qua the restoration of the possession in his
favour, the decree holder was supposed to plead specifically as to when and in
what manner he has been dispossessed. This Court finds this argument to be
noted only to be rejected. The provisions of sub Rule (5) Rule 32 of Order
21 CPC do not prescribe any such condition. Rather, Order 21 Rule 32
CPC prescribes that for execution of a decree if any act is required to be
done by the judgment debtor, the Executing Court can order that such an act be
done by the judgment debtor; as claimed. Sub Rule (5) Rule 32 of Order 21
CPC has been interpreted by the Supreme Court in various judgments viz.
"Samee Khan vs. Bindu Khan, 1998(4) RCR(Civil) 125 (SC)" to mean that
in an execution proceedings of a decree for injunction, if it is found that the
decree holder has been dispossessed after the date of decree, the restoration
of possession can also be ordered by the Executing Court. Hence, it is no more
res-integra that in execution of a decree for injunction, even restoration of
possession can be ordered by the Executing Court. This view has also been
taken by this court in 'Kapoor Singh vs. Om Parkash, 2009(4) PLR 178'.
Hence, no fault can be found, per-se, with the action of the Executing Court in
issuing warrants of possession in the execution proceedings.”
(Emphasis
supplied)
41.
Having regard to the dictum of law as laid in the aforesaid decisions, there is
no force in the argument of the learned counsel appearing for the appellants
that the execution case could not have been instituted by the respondents
herein after a period of 40 years from the date of passing of the decree in the
original Title Suit. The decree for permanent injunction can be enforced or
becomes enforceable when the judgment debtor tries to disturb the peaceful
possession of the decree holder or tries to dispossess the decree holder in
some manner or the other or creates obstruction in the peaceful enjoyment of
the property over which he has a declaration of title from the civil court in
the form of a decree.
42.
In the aforesaid context, we may refer to Article 136 of
the Limitation Act, 1963 which reads thus:-
When the decree or order
becomes enforceable or where the decree or any subsequent order directs any
payment of money or the delivery of any property to be made at a For the
certain date of at execution of recurring periods, when any decree default in
making the (other than a payment or delivery in Twelve
|
136 |
For
the execution of any decree (other than a decree granting a mandatory
injunction) or order of any civil court. |
Twelve
years. |
When the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date of at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place: Provided
that an application for the enforcement or execution of a decree granting a
perpetual injunction shall not be subject to any period of limitation. |
(Emphasis supplied)
43.
The proviso to Section 136 of the Limitation Act referred to
above makes it further clear that for the enforcement or execution of a
decree granting a perpetual injunction shall not be subject to any period of
limitation.
44.
Imprisonment of a judgment-debtor is no doubt a drastic step and would prevent
him from moving anywhere he likes, but once it is proved that he had wilfully
and with impunity disobeyed an order of injunction, the court owes it to itself
to make the judgment-debtor realise that it does not pay to defy a decree of a
court. Failure to exercise this power in appropriate cases might verily
undermine the respect for judicial institutions in the eyes of litigants. The
court’s power under Order 21, Rule 32
is
no more than a procedural aid to the harried decree-holder.
45.
Where the judgment-debtor disobeys a decree of injunction, he can be dealt with
under this rule by his imprisonment or by attachment of his property or by
both. But the court has to record a finding that the judgment-debtor wilfully
disobeyed or failed to comply with the decree in spite of opportunity afforded
to him. Absence of such finding is a serious infirmity vitiating the order.
46.
Each breach of injunction is independent and actionable in law making the
judgment-debtor answerable. Where there are successive breaches of decree, the
judgment-debtor can be dealt with on every such breach and the doctrine of res
judicata has no application. The court is expected to take strict view and
stern action. (See : Code of Civil Procedure, 1908 by Justice C.K.
Thakker, 2009 Edn.)
47.
However, the point for our consideration in the present appeal is whether the
executing court adopted the correct procedure before passing the order
directing that the appellants herein be arrested and detained in civil prison
for a period of 30 days and that their property be attached.
48.
Sub-rule (1) of Rule 32 of 0rder XXI of the Code, in so far it is material for
the present discussion, reads thus:-
“Where the party
against whom a decree ................ for an injunction has been passed, has
had an opportunity of obeying the decree and has wilfully failed to obey it,
the decree may be enforced .. in the case of a decree .. for an injunction by
his detention in the civil prison ..................”
49.
The sub-rule, as seen from its clear and explicit language, provides that
a decree for injunction passed against a party could be enforced by his
detention in a civil prison, if he has wilfully failed to obey such decree
despite having had an opportunity of obeying it. In other words, the sub-rule,
no doubt, enables a holder of a decree for injunction to seek its execution
from the executing Court by requiring it to order the detention of the person
bound by the decree, in a civil prison.
But,
the Court should not, according to the same sub-rule, make an order for
detention of the person unless it is satisfied that that person has had an
Opportunity of obeying the decree and yet has wilfully disobeyed it.
50.
If regard is had to the above scope and ambit of the sub- rule, it follows that
the executing Court required to execute the decree for injunction against the
person bound by that decree, by ordering his detention, cannot do so without
recording a finding on the basis of the materials to be produced by the person
seeking the execution of the decree that the person bound by the decree, though
has had an opportunity of obeying the decree, has wilfully failed to obey it,
as a condition precedent. Hence, what is required of the person seeking
execution of the decree for injunction under the sub- rule is to place
materials before the executing Court as would enable it to conclude (i) that
the person bound by the decree, was fully aware of the terms of the decree and
its binding nature upon him; and (ii) that that person has had an opportunity
of obeying such decree, but has wilfully, i.e., consciously and deliberately,
disobeyed such decree, so that it can make an order of his detention as
sought for. Thus, the onus of placing materials before the executing Court for
enabling it to record a finding that the person against whom the order of
detention is sought, has had an opportunity of obeying the decree for
injunction, but has wilfully disobeyed it, lies on the person seeking such
order of detention, lest the person seeking deprivation of the liberty of
another cannot do so without fully satisfying the Court about its need. (See
:Shivamurthy Mahalingappa Kuchanaur v. Dannammadevi Cycle Mart, Rabakavi, AIR
1987 Karnataka 26).
51.
In the instant case, the executing court has proceeded to make the order of
arrest, detention in a civil prison for a period of 30 days and attachment of
property against the appellants herein when there was absolutely no material
placed by the respondents herein to satisfy it that the appellants have had an
opportunity of obeying the decree for injunction, but have wilfully disobeyed
it. In fact, the order of arrest and detention made by the executing court is
based on a surmise that the respondents (decree-holders) have levelled
allegations that the appellants herein are interfering with their peaceful
possession of the property in question and in this regard, few complaints of
breaches made to the police were placed before the executing court.
52.
The executing court proceeded merely on the basis of the assertions made by the
respondents that the appellants herein are trying to interfere with their
peaceful possession of the suit property without any further inquiry into the
matter. We do not propose to go into the question whether a separate
affidavit should have been filed by the respondents herein along with the
application preferred before the executing court levelling allegations of
breach of the permanent injunction.
JURISDICTIONAL
ERROR
53.
We are a bit disappointed with the manner in which the High Court dealt with
the present litigation, more particularly while deciding the revision
application filed by the appellants herein against the order passed by the
executing court. All that the High Court has said in one line is that it did
not find any jurisdictional error in the order passed by the executing court
ordering arrest, detention in a civil prison and attachment of the property of
the appellants. We fail to understand, why the High Court was not able to see
the gross error in the order passed by the executing court, be it called an
error of law or a jurisdictional error. Undoubtedly, the High Court in exercise
of its supervisory jurisdiction under Article 227 of the Constitution
must ascertain before interfering with any order passed by a subordinate court
or tribunal whether the same suffers from any jurisdictional error. At times in
litigation like the one on hand, the court should be guided by its conscience,
more particularly keeping in mind the peculiar facts and circumstances of the
case and not strictly go by the term “jurisdictional error”. It is very easy
for the High Court to say that there is no jurisdictional error and, therefore,
no interference is warranted but before saying so, the High Court should be
mindful of the consequences that would follow like arrest, detention in
civil prison and attachment of property.
54.
What is a jurisdictional error has been the subject of a legion of illuminating
judicial decisions. In this case, however, we need concern ourselves with only
one aspect of that matter and it is enough for us to refer in this connection
to the decision of the Privy Council in the case of Joy Chand Lal Babu v.
Kamalaksha Chaudhury, AIR 1949 PC 239, where Sir John Beaumont, delivering the
judgment of the Board, observed inter alia as follows:-
“although error in a
decision of a Subordinate Court does not by itself involve that the subordinate
Court has acted illegally or with material irregularity so as to justify
interference in revision under Subsection (c). nevertheless if the erroneous
decision results in the subordinate Court exercising a jurisdiction, not vested
in it by law or failing to exercise a jurisdiction so vested, a case for
revision arises under Sub-section (a) or Sub-section (b) and Sub section (c)
can be ignored.”
55.
If, therefore, an error, be it an error of fact or of law, is such that the
erroneous decision has resulted in the subordinate Court or tribunal exercising
jurisdiction, not vested in it by law, or in its having failed to exercise
jurisdiction, vested in it by law, that will come within the scope of Section
115 of the Code or, for the matter of that, of Article 227 of the
Constitution, as the case may be. This error may have resulted from a violation
of rules of natural justice, by taking into consideration matters which are
extraneous and irrelevant, or by substituting judicial consideration by bias,
based on suspicion, arising from those extraneous matters or from any other
cause whatsoever but if it has affected the assumption or exercise of
jurisdiction, as envisaged above, it will be a jurisdictional error for
purposes of the above Article.
56.
There is no exhaustive list of jurisdictional errors, but case law has
identified such an error exists when a decision- maker has:
· identified a wrong issue;
· asked a wrong question;
· ignored relevant material;
· relied on irrelevant material;
· failed to observe a requirement
of procedural fairness;
· made a decision involving fraud;
· made a decision in bad faith;
· made a decision without
evidence;
· applied a policy inflexibly.
57.
The concept of jurisdiction has been drastically expanded after the decision of
the House of Lords in Anisminic v. The Foreign Compensation Commission, 1967(2)
AER 986. Now, every error of law is a jurisdictional error. If a decisive fact
is wrongly understood, even then, the decision will be outside
jurisdiction. This concept is best explained by K.S. Paripoornan, J., in
His Lordship's separate Judgment in Mafatal Industries Ltd. v. Union of
India, (1997) 5 SCC 536. The relevant portion of the said
judgment reads as follows:-
“334. Opinions may
differ as to when it can be said that in the “public law” domain, the entire
proceeding before the appropriate authority is illegal and without jurisdiction
or the defect or infirmity in the order goes to the root of the matter and
makes it in law invalid or void (referred to in Illuri Subbayya Chetty case
[(1964) 1 SCR 752 : AIR 1964 SC 322 : (1963) 14 STC 680 : (1963) 50 ITR 93] and
approved in Dhulabhai case [(1968) 3 SCR 662 : AIR 1969 SC 78 : (1968) 22 STC
416] ). The matter may have to be considered in the light of
the provisions of the particular statute in question and the
fact-situation obtaining in each case. It is difficult to visualise all
situations hypothetically and provide an answer. Be that as it may, the
question that frequently arises for consideration, is, in what situation/cases
the non-compliance or error or mistake, committed by the statutory authority or
tribunal, makes the decision rendered ultra vires or a nullity or one without
jurisdiction? If the decision is without jurisdiction, notwithstanding the
provisions for obtaining reliefs contained in the Act and the “ouster clauses”,
the jurisdiction of the ordinary court is not excluded. So, the matter assumes
significance. Since the landmark decision in Anisminic Ltd. v. Foreign
Compensation Commission [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2
WLR 163, HL] the legal world seems to have accepted that any “jurisdictional
error” as understood in the liberal or modern approach, laid down therein,
makes a decision ultra vires or a nullity or without jurisdiction and the
“ouster clauses” are construed restrictively, and such provisions whatever
their stringent language be, have been held, not to prevent challenge on the
ground that the decision is ultra vires and being a complete nullity, it is not
a decision within the meaning of the Act. The concept of jurisdiction has
acquired “new dimensions”. The original or pure theory of jurisdiction means
“the authority to decide” and it is determinable at the commencement and not at
the conclusion of the enquiry. The said approach has been given a go-by in
Anisminic case [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2 WLR 163, HL]
as we shall see from the discussion hereinafter [see De Smith, Woolf and Jowell
—Judicial Review of Administrative Action (1995 Edn.) p. 238; Halsbury's Laws
of England (4th Edn.) p. 114, para 67, footnote (9)]. As Sir William Wade observes
in his book, Administrative Law (7th Edn.), 1994, at p. 299:
“The tribunal must not
only have jurisdiction at the outset, but must retain it unimpaired until it
has discharged its task.”
The decision in
Anisminic case [(1949) 76 IA 244 : AIR 1949 PC 297] [(1949) 76 IA 244 : AIR
1949 PC 297] has been cited with approval in a number of cases by this Court:
citation of a few such cases — Union of India v. Tarachand Gupta &
Bros. [(1971) 1 SCC 486 : AIR 1971 SC 1558] (AIR at p. 1565), A.R. Antulay v.
R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] (SCC at p. 650),
R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission
(IT & WT) [(1989) 1 SCC 628 : 1989 SCC (Tax) 124] (SCC at p. 634), N.
Parthasarathy v. Controller of Capital Issues [(1991) 3 SCC 153] (SCC at
p. 195), Associated Engineering Co. v. Govt. of A.P. [(1991) 4 SCC 93
: AIR 1992 SC 232] , Shiv Kumar Chadha v. Municipal Corpn. of
Delhi [(1993) 3 SCC 161] (SCC at p. 173). Delivering the judgment of
a two-Member Bench in M.L. Sethi v. R.P. Kapur [(1972) 2 SCC 427 :
AIR 1972 SC 2379] Mathew, J. in paras 10 and 11 of the judgment explained the
legal position after Anisminic case [(1949) 76 IA 244 : AIR 1949 PC 297]
[(1949) 76 IA 244 : AIR 1949 PC 297] to the following effect:
“10. The word
‘jurisdiction’ is a verbal cast of many colours. Jurisdiction originally seems
to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd.
v. Foreign Compensation Commission [(1949) 76 IA 244 : AIR 1949 PC 297]
[(1949) 76 IA 244 : AIR 1949 PC 297] , namely, the entitlement ‘to enter upon
the enquiry in question’. If there was an entitlement to enter upon an enquiry
into the question, then any subsequent error could only be regarded as an error
within the jurisdiction. The best known formulation of this theory is that made
by Lord Dennan in R. v. Bolton [(1841) 1 QB 66 : 10 LJMC 49] . He said that the
question of jurisdiction is determinable at the commencement, not at the
conclusion of the enquiry. In Anisminic Ltd. [(1949) 76 IA 244 : AIR 1949 PC
297] [(1949) 76 IA 244 : AIR 1949 PC 297], Lord Reid said:
‘But there are many
cases where, although the tribunal had jurisdiction to enter on the enquiry, it
has done or failed to do something in the course of the enquiry which is of
such a nature that its decision is a nullity. It may have given its decision in
bad faith. It may have made a decision which it had no power to make. It may
have failed in the course of the enquiry to comply with the requirements of
natural justice. It may in perfect good faith have misconstrued the provisions
giving it power to act so that it failed to deal with the question remitted to
it and decided some question which was not remitted to it. It may have refused
to take into account something which it was required to take into account. Or
it may have based its decision on some matter which, under the provisions
setting it up, it had no right to take into account. I do not intend this list
to be exhaustive.’
In the same case, Lord Pearce said:
‘Lack of jurisdiction
may arise in various ways. There may be an absence of those formalities or
things which are conditions precedent to the tribunal having any jurisdiction
to embark on an enquiry. Or the tribunal may at the end make an order that it has
no jurisdiction to make. Or in the intervening stage while engaged on a proper
enquiry, the tribunal may depart from the rules of natural justice; or it may
ask itself the wrong questions; or it may take into account matters which it
was not directed to take into account. Thereby it would step outside its
jurisdiction. It would turn its enquiry into something not directed by
Parliament and fail to make the enquiry which Parliament did direct. Any of
these things would cause its purported decision to be a nullity.’
11. The dicta of the
majority of the House of Lords, in the above case would show the extent to
which ‘lack’ and ‘excess’ of jurisdiction have been assimilated or, in other
words, the extent to which we have moved away from the traditional concept of
‘jurisdiction’. The effect of the dicta in that case is to reduce the
difference between jurisdictional error and error of law within jurisdiction
almost to vanishing point. The practical effect of the decision is that any
error of law can be reckoned as jurisdictional. This comes perilously close to
saying that there is jurisdiction if the decision is right in law but none if
it is wrong. Almost any misconstruction of a statute can be represented as
‘basing their decision on a matter with which they have no right to deal’,
‘imposing an unwarranted condition’ or ‘addressing themselves to a wrong
question’. The majority opinion in the case leaves a court or tribunal with
virtually no margin of legal error. Whether there is excess of jurisdiction or
merely error within jurisdiction can be determined only by construing the
empowering statute, which will give little guidance. It is really a
question of how much latitude the court is prepared to allow….”
In a subsequent Constitution Bench
decision, Hari Prasad Mulshanker Trivedi v. V.B. Raju [(1974) 3 SCC
415 : AIR 1973 SC 2602] delivering the judgment of the Bench, Mathew, J., in
para 27 at page 2608 of the judgment, stated thus: (SCC pp. 423-24, para 28) “…
Though the dividing
line between lack of jurisdiction or power and erroneous exercise of it has
become thin with the decision of the House of Lords in the Anisminic case
[Anisminic Ltd. v. Foreign Compensation Commission, (1967) 3 WLR 382 : (1967) 2
All ER 986] , we do not think that the distinction between the two has been
completely wiped out. We are aware of the difficulty in formulating an
exhaustive rule to tell when there is lack of power and when there is an
erroneous exercise of it. The difficulty has arisen because the word
‘jurisdiction’ is an expression which is used in a variety of senses and takes
its colour from its context, (see per Diplock, J. at p. 394 in the Anisminic
case [Anisminic Ltd. v. Foreign Compensation Commission, (1967) 3 WLR 382 :
(1967) 2 All ER 986] ).
Whereas the ‘pure’
theory of jurisdiction would reduce jurisdictional control to a vanishing
point, the adoption of a narrower meaning might result in a more useful legal
concept even though the formal structure of law may lose something of its
logical symmetry. ‘At bottom the problem of defining the concept of
jurisdiction for purpose of judicial review has been one of public policy
rather than one of logic’. [S.A. Smith, ‘Judicial Review of Administrative
Action, 2nd Edn., p. 98. (1968 Edn.)]” The observation of the learned author,
(S.A. De Smith) was continued in its 3rd Edn. (1973) at p. 98 and in its 4th
Edn. (1980) at p. 112 of the book. The observation aforesaid was based on the
then prevailing academic opinion only as is seen from the footnotes. It should
be stated that the said observation is omitted from the latest edition of the
book De Smith, Woolf and Jowell — Judicial Review of Administrative Action —
5th Edn. (1995) as is evident from p. 229; probably due to later developments
in the law and the academic opinion that has emerged due to the change in the
perspective.
335. After 1980, the
decision in Anisminic case [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969)
2 WLR 163, HL] came up for further consideration before the House of Lords,
Privy Council and other courts. The three leading decisions of the House of
Lords wherein Anisminic principle was followed and explained, are the
following: Racal Communications Ltd., In re [1981 AC 374 : (1980) 2 All ER 634
:(1980) 3 WLR 181, HL] , O'Reilly v. Mackman [(1983) 2 AC 237 : (1982) 3 All ER
1124 : (1982) 3 WLR 1096, HL] , Re. v. Hull University Visitor [1993 AC 682 : (1993)
1 All ER 97 : (1992) 3 WLR 1112, HL] . It should be noted that Racal, In re
case [(1968) 3 SCR 662 : AIR 1969 SC 78 : (1968) 22 STC 416] [(1964) 6 SCR 261
: AIR 1964 SC 1006 : (1964) 15 STC 450] the Anisminic principle was held to be
inapplicable in the case of (superior) court where the decision of the court is
made final and conclusive by the statute. (The superior court referred to in
this decision is the High Court) [1981 AC 374 (383, 384, 386, 391)]. In the
meanwhile, the House of Lords in Council of Civil Service Unions v. Minister
for the Civil Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174,
HL] enunciated three broad grounds for judicial review, as “legality”,
“procedural propriety” and “rationality” and this decision had its impact on
the development of the law in post-Anisminic period. In the light of the above
four important decisions of the House of Lords, other decisions of the court of
appeal, Privy Council etc. and the later academic opinion in the matter the
entire case-law on the subject has been reviewed in leading textbooks. In the
latest edition of De Smith on Judicial Review of Administrative Action — edited
by Lord Woolf and Jowell, Q.C. [Professor of Public Law, 5 Edn. — 1995], in
Chapter 5, titled as “Jurisdiction, Vires, Law and Fact” (pp. 223-294), there
is exhaustive analysis about the concept “Jurisdiction” and its ramifications.
The authors have discussed the pure theory of jurisdiction, the innovative
decision in Anisminic case [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2
WLR 163, HL] , the development of the law in the post- Anisminic period, the
scope of the “finality” clauses (exclusion of jurisdiction of courts) in the
statutes, and have laid down a few propositions at pp. 250-256 which could be
advanced on the subject. The authors have concluded the discussion thus at p.
256:
“After Anisminic
virtually every error of law is a jurisdictional error, and the only place left
for non-jurisdictional error is where the components of the decision made by
the inferior body included matters of fact and policy as well as law, or
where the error was evidential (concerning for example the burden of proof or
admission of evidence). Perhaps the most precise indication of jurisdictional
error is that advanced by Lord Diplock in Racal Communications [1981 AC 374 :
(1980) 2 All ER 634 : (1980) 3 WLR 181, HL] , when he suggested that a tribunal
is entitled to make an error when the matter ‘involves, as many do interrelated
questions of law, fact and degree’. Thus it was for the county court judge in
Pearlman [Pearlman v. Keepers and Governors of Harrow School, (1979) 1 All ER
365 : (1978) 3 WLR 736] to decide whether the installation of central heating
in a dwelling amounted to a ‘structural alteration, extension or addition’.
This was a ‘typical ques- tion of mixed law, fact and degree which only a
scholiast would think it appropriate to dissect into two separate questions,
one for decision by the superior court, viz., the meaning of these words, a
question which must entail considerations of degree, and the other for decision
by a county court, viz., the application of words to the particular
installation, a question which also entails considerations of degree.
It is, however,
doubtful whether any test of jurisdictional error will prove satisfact- ory.
The distinction between jurisdictional and non-jurisdictional error is
ultimately based upon foundations of sand. Much of the superstructure has
already crumbled. What re- mains is likely quickly to fall away as the courts
rightly insist that all administrative action should be, simply, lawful,
whether or not jurisdictionally lawful.”
336. The
jurisdictional control exercised by superior courts over subordinate courts,
tribunals or other statutory bodies and the scope and content of such power has
been pithily stated in Halsbury's Laws of England — 4th Edn. (Reissue), 1989
Vol. 1(1), p. 113 to the following effect:
“The inferior court or
tribunal lacks jurisdiction if it has no power to enter upon an enquiry into a
matter at all; and it exceeds jurisdiction if it nevertheless enters upon such
an enquiry or, having jurisdiction in the first place, it proceeds to arrogate
an authority withheld from it by perpetrating a major error of substance, form
or procedure, or by making an order or taking action outside its limited area
of competence. Not every error committed by an inferior court or tribunal or
other body, however, goes to jurisdiction. Jurisdiction to decide a matter
imports a limited power to decide that matter incorrectly.
A tribunal lacks
jurisdiction if (1) it is improperly constituted, or (2) the proceed- ings have
been improperly instituted, or (3) authority to decide has been delegated to it
unlawfully, or (4) it is without competence to deal with a matter by reason of
the parties, the area in which the issue arose, the nature of the
subject-matter, the value of that subject-matter, or the non-existence of any
other prerequisite of a valid adjudication. Excess of jurisdiction is not
materially distinguishable from lack of jurisdiction and the expressions may be
used inter- changeably.
Where the jurisdiction
of a tribunal is dependent on the existence of a particular state of affairs,
that state of affairs may be described as preliminary to, or collateral to the
merits of, the issue, or as jurisdictional.(p. 114) There is a presumption in
construing stat- utes which confer jurisdiction or discretionary powers on a body,
that if that body makes an error of law while purporting to act within that
jurisdiction or in exercising those powers, its decision or action will exceed
the jurisdiction conferred and will be quashed. The error must be one on which
the decision or action depends. An error of law going to jurisdiction may be
committed by a body which fails to follow the proper procedure required by law,
which takes legally ir- relevant considerations into account, or which fails to
take relevant considerations into account, or which asks itself and answers the
wrong question. (pp. 119-120) The presumption that error of law goes to
jurisdiction may be rebutted on the construction of a particular statute, so
that the relevant body will not exceed its jurisdiction by going wrong in law.
Previously, the courts were more likely to find that errors of law were within
jurisdiction; but with the modern approach errors of law will be held to fall
within a body's jurisdiction only in ex- ceptional cases. The courts will
generally assume that their expertise in determining the principles of law
applicable in any case has not been excluded by Parliament.(p. 120) Errors of
law include misinterpretation of a statute or any other legal document or a
rule of common law; asking oneself and an- swering the wrong question, taking
irrelevant considerations into account or failing to take relevant
considerations into account when purporting to apply the law to the facts;
admitting inadmissible evidence or re- jecting admissible and relevant evidence;
ex- ercising a discretion on the basis of incor- rect legal principles; giving
reasons which disclose faulty legal reasoning or which are inadequate to fulfil
an express duty to give reasons, and misdirecting oneself as to the burden of
proof.” (pp. 121-122)
337. H.W.R. Wade and
C.F. Forsyth in their book —Ad- ministrative Law, 7th Edn., (1994) — discuss
the subject regarding the jurisdiction of superior courts over subordinate
courts and tribunals under the head “Jurisdiction over Fact and Law” in Chapter
9, pp. 284 to 320. The decisions before Anisminic and those in the
post-Anisminic period have been discussed in detail. At pp. 319-320, the
authors give the Summary of Rules thus:
“Jurisdiction over
fact and law: Summary At the end of a chapter which is top-heavy with
obsolescent material it may be useful to summarise the position as shortly as
possible. The overall picture is of an expanding system struggling to free
itself from the trammels of classical doctrines laid down in the past. It is
not safe to say that the classical doctrines are wholly obsolete and that the
broad and simple principles of review, which clearly now commend themselves to
the judiciary, will entirely sup- plant them. A summary can therefore only
state the long-established rules together with the simpler and broader rules
which have now superseded them, much for the benefit of the law. Together they
are as follows:
Errors of fact Old rule: The court would quash
only if the erroneous fact was jurisdictional.
New rule: The court
will quash if an erroneous and decisive fact was —
(a) jurisdictional
(b) found on the basis
of no evidence; or
(c) wrong,
misunderstood or ignored.
Errors of law Old
rule: The court would quash only if the error was —
(a) jurisdictional; or
(b) on the face of the
record.
New rule: The court
will quash for any decisive error, because all errors of law are now
jurisdictional.”
58.
For the benefit of the High Courts across the country, we may refer to a very
erudite article authored by Krystal Cunning- ham-Foran, a legal expert working
as a senior associate in Colin Biggers & Paisley's Planning Government
Infrastructure & Environment group, on the topic “Jurisdictional Error”.
The learned author has discussed a judgment rendered by the High Court of
Australia setting out practical guidance for establishing jurisdictional error
in the context of judicial review proceedings in respect of a decision about
the revocation of a decision to cancel a visa. Article reads thus:-
“The case of LPDT v
Minister for Immigration, Citizenship, Migrant Services and Multicultural
Affairs reported in [2024] HCA 12 concerned judicial review proceedings in the
High Court of Australia (High Court) in which the High Court provided practical
guidance about the threshold of materiality in the context of jurisdictional
error.
The test for
establishing jurisdictional error is two-fold. Firstly, it must be
established that an error occurred and secondly, the error must be material
such that the decision affected by error could realistically have been
different if there was no error. The practical guidance provided by the High
Court in respect of this test is set out in this article.
The judicial review
proceedings relevantly concerned an allegation that the decision of the
Administrative Appeals Tribunal (Tribunal) in respect of a decision made
under section 501CA(4) of the Migration Act 1958 (Cth) (Migration
Act) about the revocation of a decision to cancel the Appellant's visa
(Cancellation Decision) was affected by jurisdictional error.
There was no dispute
that the Tribunal's decision involved an error because the Tribunal did not
comply with a direction of the Minister in relation to the revocation of a
mandatory cancellation of a visa under section 501CA (Direction) in breach
of section 499(2A) of the Migration Act.
In respect of the
materiality of the error, the High Court held that the decision reached by the
Tribunal could have been different if there was no error and thus the threshold
of materiality was met.
The High Court allowed
the appeal, set aside the decision of the Full Court of the Federal Court of
Australia, and ordered the issue of a writ of certiorari quashing the
Tribunal's decision and a writ of mandamus directing the Tribunal to determine
the Appellant's request for revocation of the Cancellation Decision according
to law.
What is jurisdictional
error?
Jurisdictional error
arises where a decision-maker with authority to make a decision under statute
is in breach of an express or implied condition of the decision-making
authority, such that the decision made lacks legal force and is "in law…no
decision at all".
The High Court
observed that the following categories of jurisdictional error often arise, but
that the categories are not closed:
A breach by a decision-maker given authority
under statute of a condition of making a decision.
A breach by a third-party of a condition of a
statutory process before a decision is made.
Common errors in this
context include: the decision- maker misunderstands the applicable law, asks
the wrong question, identifies a wrong issue, ignores relevant material, relies
on irrelevant material, exceeds the bounds of what is reasonable, denies a requirement
of procedural fairness, or makes an erroneous finding or reaches a mistaken
conclusion.
Two-part test for
jurisdictional error Not every breach of an express or implied condition of
making a decision will render the decision no decision at all.
The limits imposed by
the relevant statute on the making of a decision must be understood to
determine the following:
"…Whether an error has occurred (that is,
whether there has been a breach of an express or im- plied condition of the
statutory conferral of deci- sion-making authority)..."
"…Whether any such error is
jurisdictional (that is, whether the error has resulted in the deci- sion made
lacking legal force)."
Practical guidance for
considering jurisdictional error The High Court stated the following practical
guidance in respect of the test for jurisdictional error:
Both parts of the test start with a consideration
of the statute to understand the nature of the alleged error in its statutory
context.
Both parts of the test are backward-looking in
that they are answered having regard to the decision that was made, and if
necessary, how that decision was made.
Whilst the applicant has the onus of proof on
the balance of probabilities, proving the facts ought not be difficult or
contentious. In some cases the tendering of the decision-maker's reasons is
sufficient, whereas in others, for example those involving an allegation of a
denial of procedural fairness, may require evidence of the content or
information required to be provided to the decision-maker.
To establish materiality, it is not necessary
that absent the error a different decision "would" have been made,
rather it is whether a different decision "could realistically" have
been made. The High Court observed that "realistic" is used to distinguish
a possible different outcome from an outcome that is fanciful or improbable.
The threshold of materiality is not onerous or
demanding. What must be demonstrated to meet the threshold depends upon the
error. A Court in deter- mining whether the threshold is met must not assume the
function of the decision-maker and fall into a merits review of the decision
made.
Once the applicant establishes an error and
that there is a realistic possibility of a different outcome if the error had
not been made, the threshold of materiality is met and relief is justified
subject to any utility and discretion.
The High Court also
observed that in some cases, such as those involving apprehended or actual
bias, the alleged error will be jurisdictional regardless of any effect on the
decision made, whilst in others, such as those involving unreasonableness, the
potential for the decision to be effected is inherent in the nature of the
error. In both of these examples, the error satisfies the requirement of
materiality.
The practical guidance
from the High Court set out above overrides any previous guidance of the
Courts.
Jurisdictional error
established in this case The High Court was satisfied that the threshold of
materiality was satisfied in this case because the Appellant established on the
balance of probabilities that a different decision realistically could have
been made if the Tribunal followed the process of reasoning required by the
Direction in deciding whether the Cancellation Decision should be revoked.
Conclusion
The High Court allowed
the appeal, set aside the decision of the Full Court of the Federal Court of
Australia, and ordered the issue of a writ of certiorari quashing the
Tribunal's decision and a writ of mandamus directing the Tribunal to determine
the Appellant's request for revocation of the Cancellation Decision according
to law.”
(Emphasis
supplied)
59.
Before we close this matter, we would like to put a question to the executing
court as to why it did not deem fit to afford one opportunity of hearing to the
appellants herein? What would have happened if the executing court would have
permitted the appellants herein to place their written objections on record? It
is true that there was some delay on the part of the appellants herein in
responding to the summons issued by it, but at the same time, having regard to
the severe consequences, the executing court should have been a little more
considerate while declining even to take the objections on record and give one
op- portunity of hearing to the appellants before passing the order of arrest,
detention in a civil prison and attachment of the property. This aspect
unfortunately has been overlooked even by the High Court while affirming the
order passed by the executing court. The High Court itself could have remanded
the matter to the executing court with a view to give an opportunity of hear-
ing to the appellants herein. The supervisory jurisdiction vested in the High
Court under Article 227 of the Constitution is meant to take care of
such situations like the one on hand.
60.
In the overall view of the matter, we are convinced that the impugned order
passed by the High Court is unsustainable in law. In such circumstances,
we set aside the order passed by the High Court and also that of the executing
court.
61.
However, we clarify that it shall be open for the respondents herein
(decree-holders) to file a fresh application if at all there is any
interference at the instance of the appellants herein (judgment-debtors) in so
far as their possession of the property in question is concerned. If any such
fresh application is filed, the executing court shall look into the same
strictly keeping in mind the observations made by this Court in this or- der
and decide the same on its own merits.
62.
The appeal is allowed in the aforesaid terms.
63.
Pending application, if any, shall stand disposed of accordingly.
64.
The Registry is directed to circulate one copy each of this judgment to each of
the High Courts with a further request that each of the High Courts shall circulate
one copy of this judgment in their respective District Courts.
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