ROSE O.J.—Jttyalalh v. Abdul Bazak
1954Present: Rose C.J. and Sansonl J.S. JAYALATH et al., Appellants, and ABDUL RAZAK et al.,
3. C. 65—D. C. (Intff,) Kandy, 2,259
Jurisdiction—Execution of proprietory decree—Right to challenge validity of decree—
Civil Procedure Code, at. 325, 394.
Execution proceedings to enforce a judgment ore collateral to the judgment,and no inquiry into the regularity or validity of (he judgment can be permittedin such proceedings.
In a suit betweon A and 8, B died pending the action and B’s devisees underhis last will were substituted in his place. Subsequently decree was enteredordering A to be placed in possession of the premises which were the subjectmatter of tho action. No appeal was hied against the judgment. When thoFiscal tried to execute the decree he was obstructed by C who had become atenant of the premises under B during the pendency of the action and, later,under B’s widow and the other substituted parties. In proceedings taken bythe judgment-creditor under section 325 of the Civil Procedure Code it wascontended on behalf of C that the Court had no jurisdiction to enter tho decreeit did because, under section 394 of the Civil Procedure Code, only the executoror administrator of the deceased B, and not his devisees, could have beensubstituted in the place of B.
Held, that even assuming that the judgment was based upon a misconceptionof the true legal position, it was not open to C to impeach tho judgment for errorsof law or irregularity in procedure.
hluheyadin v. Thambiappah (1946) 46 N. L. R. 370, distinguished.
Appeal from an order of the District Court, Kandy.
N. E. Weerasooria, Q.C., with G. Thiagalingam, Q.C., H. W. Tambiah,
D. Cosme and T. Parathalingam, for the 1st to 4th respondentsappellants.
H. V. Perera, Q.C., with S. Sharvananda, for the defendant petitionerrespondent.
Cur. adv. vult.
October 11, 1954. Rose C.J.—
This matte? originated in an action against the present resj)ondontby hie father for a declaration that the respondent was holding certain•properties intrust for the plaintiff and that the deed relating to theproperties be declared null and void for the reason that they were revoc-able deods of gift and had indeed^ been revoked by the plaintiff by deedPH in 1947. Subsequently, before the determination of tho action,the father of the respondent died and the proceedings were continuedby the substituted plaintiffs who were substituted on an applicationmade by the respondent and who claimed to be the original plaintiff’slegal heirs. All the parties to the proceedings are Muslims.
SJ. N. 11 -115-1-1,5110 (12/54)
ROSE C.J.—Jctyalaih v. Abdul Razak
On the 4th December, 1953, judgment was given in the District Courtdismissing the action of the substituted plaintiffs and entering a decreein favour of the defendant-respondent in terms of paragraphs (6) and (c)of the prayer in his amended answer, that is to say, declaring that therespondent was entitled to the premises in question and ordering theejeotment of the substituted plaintiffs from the said premises.
The relevant part of the decree, which bears the date 4th December,1953, states :—
“ It is further ordered and "decreed that the defendant be and he ishereby declared entitled to the said premises.
It is further ordered and decreed that the substituted plaintiffs beejected from premises No. 132, Colombo Street, and 28, PeradeniyaRoad, Kandy, fully described and set out in the said schedule and thedefendant placed in peaceful and quiet possession thereof ”.
There was no appeal against that decree.
On 10th December, 1953, the respondent..applied to the Court forexecution of the decree, and hie application was allowed. Writ ofpossession was issued on the following day 'against the substitutedplaintiffs. When the Fiscal's Officer went-to the premises in questionthe 1st, 2nd, and 3rd appellants stopped execution of the decree bysigning the document III dated December 14, 1953, which was in thefollowing terms:—
“ We the undersigned do hereby agree to quit and vacate and givepeaceful possession on or before the 21st December, 1953, and withoutcausing any damage to premises No. 132, Colombo Street, Kandy,failing which we agree to be ejected forthwith. We shall not raiseany objection to the writ or take any further time but undertaketo give over possession. Writ is not to be executed till then ”.
The very next day the 3rd respondent filed papers in Court claimingto be allowed to remain in possession on the ground that he was notbound by the decree. His application was dismissed as he had not beenejected, but it indicates his state of mind when he signed the under-taking Rl.
When the 21st December, 1953, arrived the 1st, 2nd and 3rd appellantsbroke their undertaking, which they probably never intended to honour,and continued in possession. When the Fiscal tried to execute the writon 23rd December, he was obstructed by all four appellants whereuponthe respondent made an application under Section 325 of the CivilProcedure Code. The appellants pleaded in their statement of objectionsthat they were formerly the tenants of the original plaintiff and laterbecame the tenants of his widow and the other substituted plaintiffsin November, 1953. They attacked the decree as invalid and thereforeincapable of execution. This application.^resulted in an order of theDistrict Court dated 10th February, 1954, ordering the respondent,as judgment creditor, to be placed in possession of the premises inquestion. It is of this order that the appellants now complain.
ROSE C.J.—Jayalath v. Abdul Bazak
So far as the facts are concerned, it is to be noted that the originaluction by the deceased plaintiff was instituted in December, 1947.The present appellants concede in an affidavit that their occupationof the premises began on the 1st January, 1950.
The appellants contend that the decree dated 4th December, 1953, isbad in law, because section 394 of the Civil Procedure Code has not beencomplied with by the Court in bringing the substituted plaintiffs on therecord. It was submitted that only the executor or administrator of thedeceased plaintiff could have been substituted in his place, whereas thepersons substituted are devisees under his last will. From this it wassought to argue that the Court had no jurisdiction to enter the decreeit did, and such decree must therefore be treated as a nullity. Be thatas it may the decree has not been set aside by a superior Court and itseems to me to be idle to argue that, whether or not the decree is mistaken,the District Court had no jurisdiction' to enter it. Assuming, but notconceding, that the judgment of the District Judge is based upon amisconception of the true legal position, it still seems to me that thematter is covered by the principle laid down in Malkarjun v. Narhari &another,* where Lord Hobhouse says at page 348 :
“ In so doing the Court was exercising its jurisdiction. It made asad mistake, it is true; but a Court has jurisdiction to decide wrong aswell as right. If it decides wrong, the wronged party can only takethe course prescribed by law for setting matters right ; and if thatcourse is not taken the decision, however wrong, cannot be disturbed.”
fehis is not a <Ase on all fours with the case of Muheyadin v. Thambiappa3oil ivliich the appellant’s counsel strongly relied. In that case Cannon J.deeded that w^en in a*p|eliminary proceeding before action is filed aObtJrt appoints'the heirPilf a deceased mortgagor to represent his estate,ali^ough there is no prqbf that the mortgaged property did not exceedR3. 2,500 as required by section 7 (2) of the Mortgage Ordinance, Cap. 74,the Court is acting without jurisdiction. But it is important to note (1)that the validity of the order of the Court was not challenged in executionproceedings in the same action but in a separate action, (2) that theseparate action was filed by a third party who, as Cannon J. points out,was a stranger to the earlier action and was not bound by it, (3) that theaction was brought after the Court had made an order appointing a legalrepresentative to represent the estate of the deceased mortgagor. In allthree respects that case differs from the present one.
■ On the first point the present appellants are seeking in executionproceedings to attack the validity of a decree which still stands, and thisthey cannot do because, as the Judicial Committee observed in GirishChander Lahiri v. Shoshi Shifchevesivar Boy 3 “ in execution proceedingswe are only construing the decree and not considering its merits ”. Theprinciple is also w’ell settled that “ a proceeding to enforce a judgment iscollateral to the judgment, and therefore no enquiry into its regularity
1 25 J. I.. It. (Bombay) 333.1 (1945) JO Ar. It. 370.
3 27 Cal. 95J.
148ROSE C.J.—Jayalath v. Abdul Razalc
or validity can be permitted in such a proceeding Windham J. nodoubt had this principle in mind when -he decided Ohinnathamby v.Somas under a Aiyar 1. In that case too the' Fiscal was obstructed bycertain persons when he went to execute a decree ; they were not partiesto the action, and when the decree holder made an application undersection 325 of the Code and the matter came up for inquiry the obstructorsraised objections to the regularity of the original action. The DistrictJudge upheld the objections and dismissed the action. In appealWindham J. said “ Now section 327 of the Civil Procedure Code requiresthe petitioner’s (plaintiff’s) petition of. complaint to be ‘ numbered andregistered as a plaint in an action between the decree-holder as plaintiffand the claimant as respondent and it further requires the Court to* proceed to investigate the claim in the same manner and with the likepower as if an action for the property had been instituted by the decree-holder against the claimant ’. But these words, though no doubt theyrequire the investigation to be treated as if it were a ‘ fresh action ’ (andon that point I concur with what was said in Fernando v. Fernandos)cannot in my view reasonably be construed as placing the plaintiff—thedecree-holder—in the position of having to comply with all the technicalrequirements of the Civil Procedure Code, non-compliance with whichmight prove fatal to an actual fresh action brought by him. Nor isthere any question of his having to show a * cause of action ’. It issufficient that he is the holder of a decree for the possession of the im-movable property. Section 327 merely says that the claim shall beinvestigated as if it were an action by the decree-holder against theclaimant. But it is the claim (i.e., the case of the person offering resis-tance to the decree) which is required to be investigated, and not, thedecree-holder’s own right. For he holds the decree, and the onus is onthe claimant to support his claim'as against that decree. Accordingly Ithink the learned Judge of the District Court erred in dismissing theplaint on issues 9 and 10, i.e., on the ground that the plaintiffs had nocause of action or had no right to maintain their action. The verydecree which they held gave them that right ”.
The Becond point on which I would distinguish this case from thatdecided by Cannon J. is also important. In 'that case it was the adminis-trator of the deceased mortgagor who filed a separate action asking fordeclaration of title to the lands of the deceased which had been boughtby the mortgagee in execution of the decree. That is a very differentposition from the one we are faced with in this appeal. It is not opento the substituted plaintiffs to attack the decree from which they filedno appeal and it is not open to those claiming rights through them, viz.,the appellants, who became their tenants pending the action, to attackit either.■
The third point of difference is that in this case, unlike the case decidedby Cannon J., the Court had already validly assumed jurisdiction whileCannon J. thought that in the case decided by him “ in the absence ofevidence of the value of the mortgaged property the Court had no juris-diction to appoint a person to represent the deceased mortgagor and
1 (1947) 48 S. L. R. S15.* (1923) 24 N. L. R. at p. 505.
Central Union Insurance Co., Ltd. v. Boteju
therefore liis estate was in law not represented in tlie action on the bondHe cited in support of his decision the dictum of Lord Esher M. R. inThe Queen v. The Commissioner of Income Tax1-.—“It (the legislature)may in effect say that if a certain state of facts exists and is shown to suchtribunal or body before it proceeds to do certain things, it shall havejurisdiction to do such things, but not otherwise. Then it is not forthem conclusively to deoide whether that state of facts exists, and if theyexercise the jurisdiction without its existence, wliat, they do may bequestioned, and it will be held that they have acted without jurisdiction
But the case we are dealing with is different. The passage quotedby Nagaluigam J. in Marfan v. Burah 2 is more to the point : “ Aftera Court has acquired jurisdiction as well as a right to decide every questionarising in the case, and however erroneous its decision may be, it isbinding on the parties until reversed or annulled. Here we have acompetent Court with admitted jurisdiction of the subjeot matter and theparties, with full power and authority to decide all questions arising inthe case, and it is sought to impeach the validity of its decree becauseforsqoth it was mistaken either as to the law applicable to the factsbefore it or to the facts themselves ”. Nagalingam J. went on to say“ The principle is so well settled that it is said to be an axiom of law thatwhen a Court has jurisdiction of the subject matter and the parties itsjudgment cannot be impeached collaterally for errors of law or irregularityin practice ”.
The appeal, in my opinion, is misconceived and must be dismissed withcosts.
Sansoni J.—I agree.
D. S. JAYALATH et al , Appellant, and ABDUL RAZAK et al , Respondent
ROSE O.J.—Jttyalalh v. Abdul Bazak