- (1.) This is an application for execution of a decree. In order to appreciate the contentions raised, it is necessary to mention that in 1970 the Central Bank of India instituted a suit, being suit No. 212 of 1970, for recovery of Rs. 10,22,652.81 in the account of B.C. Nawn & Bros. Pvt. Ltd., and for recovery of Rs. 17,29,315.68 in the account of Bengal Fine Spinning & Weaving Mills Ltd., with interest and costs and for a mortgage decree in respect of the properties in the Lal Bazar Street, Calcutta and another property in Brabourne Road, Calcutta and for a declaration of charge on certain movable properties. The defendants to the suit were 7 in number including B.C. Nawn & Bros. Pvt., Ltd. Nawn Estate Pvt. Ltd., and Bengal Fine Spinning & Weaving Mills Ltd. On the 22nd September, 1970 a compromise decree was passed. The said compromise decree provided, inter alia, as follows : "1. Decree om favour of the plaintiff for Rs, 10,22,652-81p. (Rupees Ten Lacs twenty two thousand six hundred and fifty two and eighty one paise) only in respect of the Amount maintained by or with the plaintiff in the name of B.C. Nawn & Bros. (P) Ltd. against the defendants. (i) B.C. Nawn & Bros. (P) Ltd. (ii) Sudhir Chandra Nawn. (iii) Sunil Chandra Nawn. (iv) Provas Chandra Nawn. (v) Ranjit Kumar Nawn, and (vi) Nawn Estates Private Ltd. with interest on the said amount at the rate of ten per cent per annum from the date of filling of the suit until realisation. ******* "10. In default of taking delivery of the goods in terms of clause 8 above for three months, or in default of payment of the said decretal sum Rs. 17,79,315.68P. with interest thereon within one year from this date, the entire decretal amount (less the said sum of Rs. 50,000/- already paid on this date) or such part thereof as would then remain due, will at once become payable to and recoverable by the plaintiff and the plaintiff shall thereafter also be at liberty to sell the goods mentioned in Annexure 'A' hereto or such portion thereof as may then be in their possession and appropriate the sale proceeds thereof after meeting all costs, charges and expenses of such sale in protanto satisfaction of the decretal dues and the plaintiff will be further entitled to execute the decree mentioned in clause 4 above for the balance of its dues thereunder as against all or any of the defendants. "11. The properties belonging to the defendant Nawn Estate Private Ltd. and mentioned in Annexure 'B' hereto will stand charged in favour of the plaintiff for repayment of the aforesaid dues of the plaintiff under and in respect of the decree mentioned in clauses 1 and 4 above. ******* "13. The plaintiff will be entitled to have the said properties belonging to Nawn Estates Private Ltd. and mentioned in Annexure 'B' hereto attached and/or sold in execution of the decrees mentioned in clauses 1 and 4 above or either of them, for realisation of the plaintiff's dues under the said decrees or either of then or any part or parts thereof as may remain due without recourse to any fresh suit or suits or in other words, will entitled to enforce the charge declared hereinbefore in execution of these decrees without recourse to any fresh suits." Thereafter the compromise decree provided for payment of certain instalments and it contained a default clause in failure to pay the said instalments. There was also a further decree for Rs. 17,79,315. 68p. in favour of the plaintiff in respect of the account maintained by and with the plaintiff in the name of Bengal Fine Spinning & Weaving Mills Ltd. and there were certain consequential other terms which are not necessary to refer. Thereafter in April, 1971 certain bales of cotton which were charged, had been sold and certain payments were made. In August, 1973 there was an application by the decree holder for appointment of Receivers over the rents, issues and profits of the premises. Nos. 9A, 10/1A and 10/M. Lal Bazar Street , Calcutta. On 11th March, 1974 an order was made appointing Receivers on the rents, issues and profits of the properties but it was directed that the Receivers were not to take possession if the defendants went on making payments of Rs. 20,000/- per month until the decretal amount and costs were paid off. There was an appeal preferred by some of the judgment debtors and a cross-objection was also filed. On the 12th March, 1975 both the appeal and the cross-objection were dismissed. The judgment debtors had been paying Rs. 20,000/- in every month after 12th March, 1975. The decree holders sold the pledged goods and had realised a net sum of Rs. 7,48,602.23p. leaving a balance of Rs. 5,77,489.86 due from the defendants in first account and further a total sum of Rs. 18,84,649.35p. in the account of the judgment debtor Bengal Fine Spinning & Weaving Mills Ltd. There is thus, according to the decree-holder, a total sum of Rs. 24,62,138.99p. due and owing at the date of the application. The present application was made on the 12th July, 1976 for sale of the properties.
(2.) The application is opposed on the ground that the decree is a nullity inasmuch as the provisions for payment of interest of the decretal amount at the rate of 10 per cent per annum from the date of filing the suit until realisation as mentioned in clause 1 of the compromise terms in contrary to section 34 of the Code of Civil Procedure. It was contended that such a decree was void and as such the decree could not be executed. In support of this proposition reliance was placed on the decision in the case of Gora Chand v. Profulla Kumar, AIR 1925 Cal. p. 907 where it was held that if the decree presented for execution was made by a Court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment debtor's person to make the decree, the executing court was entitled to refuse to execute on the ground that it was made without jurisdiction, i.e. within these narrow limits the executing court was authorised to question the validity of a decree. Reliance was also placed on the observation of the Supreme Court in the case of Kiran Singh v. Chaman Paswan, AIR 1954 SC p. 340. It was contended that there had been violation of section 34 of the Code of Civil Procedure. Therefore, the Court did not have the authority under the law to make the decree for interest in the manner it has purported to do. Reliance was also placed in this connection on the decision of the Supreme court in the case of Bahadur Singh & Anr. v. Muni Subrat Das & Anr., 1969 (2) SCR 432. Reliance was also placed in the case of Kaushalva Devi & Ors. v. C.K. Bansal, 1969 (2) SCR 1048 and the decision of the Supreme Court in the case of the Official Trustee, W.B. v. Sachindra Nath Chatterji & Anr., AIR 1969 SC 823. Inasmuch as the decree was contrary to , according to the respondent, the terms of section 34 of the Code of Civil Procedure there was defect in the authority of the Court to pass the decree in question and, therefore, the decree was a nullity and could be resisted as such at the time of the execution of the decree. On behalf of the decree-holder it was, however, contended that in view of rule 11, Order 34 of the Code of Civil Procedure the decree in question was not illegal or contrary to law. The respondent on the other hand contended that section 34 of the Code of Civil Procedure which was applicable in this case was not subject to Order 34 of rule 11 on this aspect of the matter. Reliance in this connection was placed on certain decision. It is not necessary, in my opinion, to decide in this application whether section 34 of the Code of Civil Produre is subject to Order 34 rule 11 of the Code of Civil Procedure. For the purpose of this application I will assume that section 34 of the Code of Civil Procedure applied and the provision for payment of interest in the compromise decree was contrary to the mandate of that section. The question, however, is whether at the execution stage this decree could be challenged resisted on this ground.
(3.) Whether an illegality or infirmity in the decree amounts to an error within the jurisdiction or error in excess of the jurisdiction so as to make the decree a nullity vulnerable to collateral attack is not easy of solution. The Supreme Court in the case of Official Trustee, W.B. v. Sachindra Nath Chatterji & Anr., AIR 1969 SC 823 reviewed the principle and observed that it was difficult to find out a correct principle why in certain cases it had been held to be an error within the jurisdiction or in certain other cases it had been held not to be such an error. The Supreme Court was of the view that the reason could only be that the error of law was considered as vital by the Court and there was no yardstick to determine the magnitude of the error other than the opinion of the Court. In the case of Hariprosad Mulshankar Trivedi v. V. B. Raju & Ors., AIR 1953 SC p. 2602. the Supreme Court observed that at bottom the problem of defining the concept of jurisdiction for purpose of judicial review is the question of public policy rather than one of logic. Therefore, the question, is, whether in a case where the Court has awarded interest contrary to the provisions of Section 34 of the Civil Procedure Code, in an action where the parties had agreed to such a decree and had induced the Court to pass a decree, would such an error, as a matter of public policy, be considered of such magnitude as a decree by a Court without jurisdiction. In view of the nature of the error allowed to have been committed I am unable to hold that this is such an error which makes the decree without jurisdiction as such. Reliance in this connection may be placed on the decision of R. N. Mitra v. Angurbala, AIR 1976 Cal. p. 217 where the question was whether a decree passed in violation of section 80 of the Negotiable Instruments Act, 1881 could be considered to be a nullity. This view is also in consonance with the view expressed in the case of I. K. Merchants Ltd. v. Indra Prakash, AIR 1973 Cal. 306.;