JUDGMENT
S.B. Sinha, J.
1. Both these civil revision applications were heard together and are being disposed of by this common judgment.
2. The facts of the case lie in a very narrow compass.
3. The suit property which is allegedly being a Khas Mahal property belonged to one Sipahi Lal Choudhary. Shri Krishna Prasad (the judgment debtor) purchased the said property from the aforementioned Sipahi Lai Chaudhary by virtue of a registered sale deed, details whereof are not available on records. The tenure of the lease in respect of the aforementioned Khas Mahal property expired in 1960 but no action was taken till 1978 to renew the said lease. It has been alleged that the said lease has since been renewed by the sons of judgment-debtor (Petitioners of C.R. No. 132 of 1988), after the execution case being Execution Case No. 7 of 1977 was filed in the Court of Subordinate Judge, Sahebganj purported to be on the basis of a deed of transfer made by Sri Krishna Prasad in favour of his sons. Allegedly the said lease has been renewed in the year 1978. The petitioner in Civil Revision No. 132 of 1988 however claims the said property by virtue of a deed of lease allegedly executed by the Khas Mahal authorities in the year 1978 for a period of 30 years.
4. It appears that a decree was passed against the aforementioned Krishna Prasad by the Calcutta High Court and the D. Hr. thereof executed the said decree by filing an execution petition in the Calcutta Courts, The said Execution Case was later on transferred to the Court of Subordinate Judge, Sahebganj which was registered as Execution Case No. 7 of 1977.
5. It appears that in the aforementioned Execution Case the suit property was attached and later on put in an caution. On or about 31.7.1982 the petitioner of Civil Revision No. 1397 of 1987 purchased aforementioned property on auction. The said sale was later on confirmed by the Executing Court. Thereafter the Khas Mahal lease, as stated hereinbefore, was renewed in the name of the petitioner of C.R. No. 132 of 1988.
6. The judgment-debtor Krishna Prasad filed an objection under Section 47 of the Code of Civil Procedure in the aforementioned execution case which was dismissed by the executing court by an order dated 28.7.1983.
7. The judgment-debtor thereafter preferred an appeal against the said order which was admitted by the District Judge by an order dated 3.8.1984 and the said order admitting the appeal was challenged by Shiv Nath Yadav (petitioner of C.R. No. 1397 of 1987) in this Court by filing a Civil Revision application.
8. The said civil revision application was registered as C.R. No. 1414 of 1984 and the same was allowed by this Court by an order dated 14.4.1987.
9. Thereafter Vijay Chandra and Nagesh Chandra, petitioners of C.R. No. 132 of 1988, filed a suit in the Court of subordinate Judge, Sahebganj which was registered as Title Suit No. 11 of 1982. In the said suit the plaintiffs thereof claimed title to the properties in question and further prayed for a decree for setting aside the auction sale.
10. The said suit was dismissed as being not ‘maintainable and the plaint thereof was directed to be returned by an order dated 5.9.1983. The plaint of the said suit purported to have been returned allegedly for non-compliance to the provision of Section 80 of the Code of Civil Procedure. It appears that the plaintiffs of that suit filed a First Appeal in this Court being F.A. No. 473 of 1983 against the aforementioned order. The plaintiffs of the said suit also filed a civil revision application against the said order dated 5.9.1983 which was registered as C.R. No. 1351 of 1983. By an order dated 5.9.1986 the said civil revision application was allowed and the case was remitted back to the Court of learned Subordinate Judge, Sahebganj for a fresh decision in accordance with law. The said order dated 5.9.1986 passed in C.R. No. 1351 of 1983 is contained in Annexure-2 to C.R. No. 132 of 1988.
11. From a perusal of the said order it appears that this Court in the said case held as follows:
2. The learned Counsel for the petitioners has raised an objection to the execution of a decree arising out of a Title Suit No. 11 of 1982 by which in execution of a money decree the property in dispute was sold and purchased by an auction purchaser and the sale was confirmed. The objection of the petitioner was that they are the real lessee from the Government and the sale or attachment of the property in the aforesaid Title Suit against the defendants in that suit was not binding for was it operative against their interest. As far as this order is concerned I find no infirmity in it as the matter stands. On both the counts the lower court is right and the plaintiffs have not laid foundation for the second point and have indeed not made the concerned officials a party nor has any notice been issued.
3. The lower court however missed one aspect of Section 80, C.P.C. The Court should have returned the plaint to the plaintiff directing them to remove the disability in filing the same. There is another aspect in regard to the second point. The court should examine whether the provision of Order XXI, Rule 58 C.P.C. applies to the petitioners at all or not because that does not ex facie apply to strangers to the decree in contradictinction to the provisions of Order XXI, Rule 97, C.P.C.
12. It, however, appears that in the aforementioned First Appeal the appellants thereof (the petitioners of C.R. No. 132 of 1988) filed an application for stay of further proceeding in the execution case and the same was dismissed by an order dated 6.12.1983. The said order dated 6.12.1983 is contained in Annexure-2 to C.R. No. 1397 of 1987.
13. Thereafter the learned trial court by an order dated 29.8.1987 held that the suit is maintainable in terms of the orders of this Court passed in C.R. No. 1351 of 1983. The Civil Revision No. 1397 of 1987 is against the said order.
14. From a perusal of the records of the said civil revision it appears that by an order dated 16.10.1987 the operation of the aforementioned order was stayed by this Court.
15. Thereafter in the aforementioned execution case No. 7 of 1977 the Subordinate Judge, Sahebganj issued a writ of delivery of possession was issued in favour of Shiv Nath Yadav, by an order dated 10.11.1987. Against the aforementioned order dated 10.11.1987 the plaintiffs of Title Suit No. 11 of 1982 have filed C.R. No. 132 of 1988 and this Court by an order’ dated 1.2.1988 while admitting the Civil revision application directed that during the pendency thereof the petitioners would not be evicted from the suit premises.
16. From a perusal of civil revision application it appears that the opposite party thereof filed an application for vacating the order of stay bringing it to the notice of this court, the order dated 6.12.1983 passed in the First Appeal preferred by the petitioners of C.R. No. 132 of 1988.
17. Mr. Tarakant Jha, learned senior counsel appearing for the petitioner in C.R. No. 132 of 1988 submitted that the learned Executing Court ought not to have directed delivery of possession in respect of the premises in question in view of the fact that the suit is still pending. He further submitted that as the said suit has been restored by the learned Court below by the aforementioned order dated 29.8.1987, in the interest of justice the execution proceeding should not be allowed to continue nor any delivery of possession of the suit premises should be effected.
18. On the other hand, the learned Counsel for the petitioner in C.R. No. 1397 of 1987 submitted that the order passed by the Subordinate Judge, Sahebganj was wholly illegal and without jurisdiction inasmuch as the question as to whether the suit was maintainable and the plaint was liable to be rejected or not, being the subject-matter of the First Appeal, the court below had no jurisdiction to pass the impugned order. In order to appreciate the arrival contentions of the parties it is necessary to consider the provision contained in Order VII, Rule 11, C.P.C. which reads as follows:
2. Rejection of plaint.–The plaint shall be rejected in the following cases:
(a) Whether it does not disclose a cause of action;
(b) Whether the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Whether the relief claimed is properly valued out but the plaint is written upon paper insufficiency stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law.
19. The order of learned Subordinate Judge dated 5.9.1983 were in two parts; first part being that the suit was not maintainable and the second part being that the plaint was liable to be rejected for non-complaince of the provision of Section 80 of the Code of Civil Procedure.
In view of the definition of decree as contained in Section 2(2) of the Code of Civil Procedure, the same includes a rejection of a plaint.
20. Plaintly enough the order rejecting the plaint for non-service of notice under Section 80, C.P.C. as provided for under Order VII, Rule 11(d), C.P.C. was an appeable order. In this view of the matter this Court had absolutely no jurisdiction to pass the order dated 4.9.1986 in C.R. No. 1351 of 1983. In terms of Section 115(2) of the Code of Civil Procedure the High Court has no jurisdiction to vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. The said Civil Revision application, therefore, was patently not maintainable and as such this Court had no jurisdiction to entertain the same. Further from the order of this Court dated 5th September, 1986 as contained in Annexure-2 to C.R. No. 132 of 1988 it appears that one of the grounds on the basis whereof the suit was held to be not maintainable was upheld by this Court. In Pandurang v. State of Maharastra, , the Supreme Court has held that even the right decision by a wrong forum is no decision the eye of law. In Chief Justice of Andhra Pradesh v. L.V.A. Disxitulu and Ors. at 198, it has been held that any order which has been passed by as authority having no jurisdiction is a nuility.
21. Further the very fact that the First Appeal was pending in this Court which evidently is maintainable and in which the prayer for interim stay was refused, this Court could not have exercised its revisional jurisdiction as against the self-same order as there was a chance of passing inconsistent orders by this Court. It may also be noted here that although in the said First Appeal the prayer for grant of stay was refused by a Division Bench, in C.R. No. 132 of 1988 the prayer for stay was allowed. There is thus inconsistency in the interim orders passed by this Court in two different cases.
22. In Lewis and Spekling on Injunction the learned author at page 10 has observed as follows:
Where a court having general jurisdiction and having acquired jurisdiction of the subject-matter has issued an injunction a court of concurrent jurisdiction will usually refuse to interfere by issuance of a second injunction. There is no established rule of exclusion which would deprive a court of jurisdiction to issue an injunction between the same parties appertaining to the same subject-matter, but there is what may properly be termed a judicial comity on the subject.
23. Mr. T.K. Jha, the learned Counsel for the petitioner in Civil Revision No. 132 of 1988, when confronted with the situation conceded that the order dated 5.9.1983 passed by the learned Subordinate Judge, Sahebganj in Title Suit No. 11 of 1982 was an appealable order. Consequently it must be held that the order of this Court dated 4.9.1986 passed in C.R. No 1351 of 1983 itself was a nullity and as such, the impugned order dated 29.8.1987 passed by the learned court below in Title Suit No. 11 of 1982 which is based upon the aforementioned order of this Court must also be held to be a nullity.
In this situation, the Civil Revision No. 1397 of 1987 must be allowed and the order dated, 29.8.1987 is liable to be set aside.
24. So far as the submission made on behalf of the petitioners in C.R. No. 132 of 1988 are concerned, in my opinion, the same has no force. The petitioner evidently has tried his luck before the learned court below as also in this Court. The petitioners had also filed an application for injunction. However as mentioned hereinbefore, the learned court below had rejected the plaint itself. It is further evident that this Court by an order dated 6.12.1983 rejected an application for stay of the further proceeding in the execution case filed on behalf of the petitioner in F.A. No. 473 of 1983.
In this view of the matter the question of grant of stay by the learned executing court or by this Court does not arise.
In this view of the matter, in my opinion, the learned court below was bound to execute the decree as no order of stay was subsisting in relation thereto.
25. In this view of the matter I do not find any merit in C.R. No. 132 of 1988.
26. In the result C.R. No. 1397 of 1987 is allowed and C.R. No. 132 of 1988 is dismissed but without any order as to costs.