JUDGMENT
Raj Kishore Prasad, J.
1. This appeal by Judgment-debtor 1, arises out of his objection under Section 47, Civil P. C., on the ground, inter alia, that the decree under execution is a nullity, and, therefore, it could not be executed against him.
2. This objection was based on the following facts: The decree-holders were partners of a firm. On the basis of a chitha, executed by the present appellant, on behalf of the defendants’ firm, in respect of a certain transaction, the defendants were sued by the decree-holders for recovery of a certain amount of money advanced by them to the appellant’s firm for supply of coal, which it did not supply. The suit was contested by defendants 4 and 5 only.
The present judgment-debtor, who was defendant 1, did not appear and contest the suit, nor did he file any written statement. He was, however, examined as a witness, and he supported the plaintiff’s claim, and admitted to have executed the chitha, which was the basis of the suit. The plea taken by defendants 4 and 5 was that the suit was not maintainable, because of non-registration of the plaintiff’s firm, and, therefore, Section 69(2), Partnership Act was a bar to the suit.
The trial Court overruled this objection, and decreed the suit against all the defendants, including the present appellant. On appeal, by defendants 4 and 5 only, the decree, however, as against them was set aside, as the appellate Court held that the suit was not maintainable, but the decree against the rest,, including the appellant was affirmed. There was thereafter no further appeal by either the decree-holders, or by the present appellant. The decree-holders then put, the decree into execution against the present appellant, and two others, who were defendants 1 to 3.
3. The objection of the appellant was that as it had been found by the appellate Court, in the appeal by defendants 4 and 5, that the suit was not maintainable for non-registration of the firm of the plaintiff, and, therefore, no decree could be passed against defendants 4 and 5, no decree could be passed against the other defendants also; and as such the decree passed against the appellant was a nullity.
It was contended that when the suit had been held to be not maintainable, it must be deemed to be not maintainable against this appellant also, although he did not appeal against the decree to the Court of appeal below, nor even the appellate Court itself reversed the decree as against the present appellant, which it could do, and should have done, under Order 41. Rule 33. Civil P. C. It was, therefore, urged that the suit being not maintainable, no decree could have been passed against the appellant, and as such the decree was void and in-executable.
4. The learned Subordinate Judge, on appeal, in the present case, found that the partnership business of the plaintiff had not come to an end before the institution of the suit, in which the decree under execution was passed. He, however held that the executing Court could not go behind the decree, and determine the question, whether the decree had been passed without jurisdiction, in view of the fact that it was not disputed that the Court, which passed the decree under execution had apparently jurisdiction, both pecuniary and territorial as well as in respect of the judgment debtor’s person. He, therefore, held that, in such circumstances, it could not be said that the decree under execution was without jurisdiction, and a nullity; and as such in executable.
5. In the appeal before me, Mr. Baidyanath Prasad II, appearing for the appellant, has relied on Clause (2) of Section 69, Partnership Act, and contended that the decree having been passed in contravention of Section 69(2) of the Act, was a nullity, and, therefore’, inexecutable.
6. Section 69(2) runs thus:
“No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.”
7. There can be no doubt that the bar provided by Section 69(2) would apply to a suit, if it is brought on behalf of a firm, which is not registered. Such an objection, however, has to be raided by the defendants in the suit itself. The proper stage for agitating such an objection is before the passing of the decree, and not before the executing Court, after the decree has been passed, it has become final and been put into execution.
When such an objection is raised in the suit, it would be open to the trying Court to go into the question, and if it finds that really the plaintiff’s firm is an unregistered firm, it will give effect to the plea in bar, and dismiss the plaintiff’s suit. If, however, such a suit has been decreed by a Court, either in ignorance and in contravention of the provisions of Section 69(2), or, after overruling the objection of the defendants on such a ground, it cannot be said that the decree passed in such a suit is a nullity. Such a decree at best could be only, erroneous in law; but not a nullity.
The proper remedy of an aggrieved party in such a case is to appeal against that decree to the superior Court. But if he fails to avail himself of that remedy provided by law, he cannot at, the execution stage contend that the decree, which has been passed against him, is a nullity, because the suit itself, in which the decree was passed, was barred under Section 69(2).
Even in a case where some of the defendants appeal against the decree, passed against them and others, to the appellate Court, and get a reversal of the decree, as against them, on the ground that the suit is not maintainable, and the appellate Court does not choose to reverse the entire decree also against those defendants, who have not appealed against that decree, which it is perfectly entitled to do under Order 41, Rule 33, Civil P. C.; in such a case also it cannot be said that the decree passed by the Court, as affirmed by the appellate Court against such defendants, who did not appeal, is a nullity, on the ground that the suit has been held to be not maintainable as against other defendants who had appealed.
8. The present appellant did not contest the suit, nor did appeal against’ the decree passed against him. Defendants 4 and 5 contested the suit, and, appealed against the decree, and got a reversal of the decree against them. It was certainly open to the Court of appeal below to set aside the entire decree. But if it did not choose to do so, it is not open to an executing Court to go behind that decree, and say that such a decree is a nullity, when admittedly the Court, which passed the decree, had the necessary jurisdiction to do so.
9. It is well settled that where the decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary, or territorial, or in respect of judgment-debtor’s person to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction; within these narrow limits, the executing Court is authorised to question the validity of a decree.
The expression “The Court which made the decree had no jurisdiction to make it” means that “the Court had such territorial jurisdiction as would authorise it to make the decree, and not that having jurisdiction it exercised erroneously”. (Vide — ‘Gorachand v. Profullo Kumar Roy’, ILR 53 Cal 166: AIR 1925 Cal 907 (PB) (A)).
This Pull Bench decision was followed in Rabindranath Chakrabarti v. Janendra Mohan Bhaduri, ILR 58 Cal 1018: (AIR 1932 Cal 9) (B). In this case it was further held that a decree passed in excess of the limits prescribed may also be re-
garded as void on the ground of lack of inherent jurisdiction, this decision was affirmed on appeal by the Privy Council in Janendra Mohan Bhaduri v. Rabindra Nath Chakrabarti, LR 60 Ind App 71 : (AIR 1933 PC 61) (C), The Privy Council held that if an act does not authorise a Court to pass a decree, then such a decree passed by it is a nullity.
10. In Ramaswami v. Kailasa Thevar, AIR 1951 SC 189 : 1951 SCR 292 (D), Mukherjea J., as he then was, observed:
“The duty of an executing Court was to give effect to the terms of the decree that was already passed, and beyond which they could not go. It is time that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties.”
11. Subsequently in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 (E), the Supreme Court held that it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever, and wherever, it is sought to be enforced, or relied upon, even at the stage of execution, and even in collateral proceedings; because such a defect of jurisdiction, whether it is pecuniary, or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.
12. It is now well settled by a number of decisions that a decree, which is passed by a Court, which had no jurisdiction–territorial, personal, or pecuniary–that is, in which there was a patent lack of inherent jurisdiction, to make it, is coram. ‘ non judice, ab initio void, and a nullity. The question as to the absence of jurisdiction may be raised even in execution proceedings, or in collateral proceedings.
It is open to the executing Court to determine, whether the decree which it is asked to execute, is a subsisting and operative decree, or not, or is a nullity, “a mere nothing”, which need not be set aside, but may be disregarded, and ignored by it, and as such it should refuse to execute it. But this rule is subject to the execution that where an objection is raised in execution proceedings as to the want of, or lack of, jurisdiction in the Court to pass the decree, the decree must be “apparently” without jurisdiction, that is, on the lace of it the decree must show that it was passed by a Court which was incompetent to make it.
If, however, it is admitted that there is no defect of jurisdiction, whether pecuniary, or territorial, or in respect of the subject-matter, or the persons, and the Court which passed the decree was not inherently incompetent to pass it, but it is alleged that there was irregularity, or illegality, in the exercise of its jurisdiction by the Court in making the decree, and if for purposes of ascertaining whether the Court, which passed it, had, or, had no jurisdiction to pass it, it is necessary to make investigation as to the jurisdiction of the Court, then the executing Court has no competence to permit that investigation to be made. The reason for such rule is clear.
The executing Court is normally bound to execute the decree as it stands. It cannot go behind it. It must take it as it stands. It has no power to entertain any objection as to the validity of the decree. I has no authority to question its legality or correctness. The question as to whether the view of the Court which passed the decree is right or wrong is no longer open in execution proceedings. The reason is that a decree though it may not be according to law, is binding and conclusive
between the parties until it is set aside either to appeal or revision.
It is, therefore, not permissible for the executing Court to sit in appeal over decision or the Court which passed the decree, and to refuse to execute the decree, because the reasons, which appealed to the Court, which passed the decree, do not appeal to the executing Court.
The attack on the validity of the decree under execution upon such a plea of an, alleged irregularity, of illegality, — involving, it ‘is plain, no question of jurisdiction–in the making thereof, is outside the scope of Section 47, Civil P. C., and, therefore, clearly beyond the cognisance of the executing Court “(vide Talebali v. Abdul Aziz, ILR 57 Cal 1013 : (AIR 1929 Cal 689) (PB) (F); The Bank of Bihar v. Sarangdhar Singh, 75 Ind App 300: AIR 1049 PC 8 (G); Gaya Prasad v. Seth Dhanrupmal Bhandari, AIR 1954 Cal 492 (H); Har Kishen Das v. Satgur Prasad, AIR 1938 PC 98 (I); and Krishnan Nair v. Ramchandra Vithal, AIR 1956 Bom 268 (J).
13. If, however, for instance, sale of some land is forbidden by any law, then a decree for sale of such land will be a nullity, as it is non-existent in the eye of law and the executing Court can refuse to execute it: see Chintamani Saran Nath v. Zahiruddin, AIR 1956 Pat 57 (K).
14. The Courts below, therefore, have taken the correct view of the law that the executing Court cannot go into the question of determining whether the jurisdiction exercised by the Court in passing the decree was exercised erroneously, when it is not disputed that the Court, which passed the decree, had apparently jurisdiction to do so; and as such the objection based on Section 69(2), Partnership Act was, not available to the appellant after a decree had been passed, inasmuch as the executing Court had no authority to go into the question of maintainability of the suit, or validity of the decree passed in that suit,
15. I, therefore, hold that the disability created by Sub-section (2) of Section 69 of the Act is with regard to the right to institute a suit, and not with regard to the power of the Court to pass a decree. I The prohibition contained in Section 69(2) is only to the institution of the suit.
The plea of non-maintainability of a suit, on behalf of an unregistered firm, under Section 69(2), Partnership Act, is, as such, not available to a judgment-debtor at the execution stage. Such an objection should be taken in the suit itself before the passing of the decree.
If such an objection is taken in the suit, and overruled, or, such an objection is not taken at all in the suit, and a decree is passed, in contravention of Section 69(2) of the Act, the decree is not a nullity, if the Court otherwise has inherent jurisdiction to pass the decree. The executing Court, therefore, has no jurisdiction to go behind such a decree.
16. For the reasons given above, I hold that
there is no merit in the appeal, which is accordingly dismissed; but in the circumstances of the
case there will be no order for costs of this Court.