ASMA LATEEF & ANR versus SHABBIR AHMAD & ORS

Citation: [2024] 1 S.C.R. 517 · Decided: 12-01-2024 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI, DIPANKAR DATTA, ARAVIND KUMAR · Disposal: Dismissed

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Judgment (excerpt)

* Author
[2024] 1 S.C.R. 517 : 2024 INSC 36
Asma Lateef & Anr.
v.
Shabbir Ahmad & Ors.
(Civil Appeal No. 9695 of 2013)
12 January 2024
[B.R. Gavai, Dipankar Datta* and Aravind Kumar, JJ.]
Issue for Consideration
Whether the order dated 05.08.1991 (vide which application u/
rr.5 and 10 of Or.VIII, CPC was allowed by the Trial Court for 
pronouncement of judgment against defendant no.2 in the suit) 
suffered from a jurisdictional error so grave that the decree drawn 
up subsequently is incapable of execution by the Executing Court 
and an objection that it is inexecutable was available to be raised 
u/s. 47, CPC by the respondents 1 to 3.
Headnotes
Code of Civil Procedure, 1908 – rr. 5, 10 of Or. VIII and s.47 
– Respondents 1 to 3 had filed an objection u/s. 47 of the 
CPC in an execution application filed before the Executing 
Court by the appellants-plaintiffs – It was urged, based on the 
case pleaded therein, that the decree put to execution was 
inexecutable – The Executing Court allowed the objections 
and the execution application was dismissed – However, the 
Revisional Court directed the Executing Court to proceed 
with the execution of decree – Respondents 1 to 3 filed 
application u/Art. 227 against the revisional order – The High 
Court quashed the order passed by the Revisional Court and 
relegated the parties to the remedy of having their rights, in 
respect of the suit property, adjudicated by the appropriate 
forum – Propriety:
Held: Appellants-plaintiffs had instituted a civil suit against the three 
defendants-K (defendant no.1), K’s son S (defendant no.2) and 
R (defendant no.3) – K filed his written statement on 05.12.1990 
and inter-alia contended that suit was barred by s.331 of the Uttar 
Pradesh Zamindari Abolition and Land Reforms Act, 1950 – No 
written statements was filed by other two defendants – Appellants 
518
[2024] 1 S.C.R.
Digital Supreme Court Reports
moved an application u/rr. 5, 10 of Or.VIII, CPC for pronouncement 
of judgment against S (defendant no.2) and the same was allowed 
– K passed away and the suit against him was dismissed as 
abated – In the instant case, the trial Court is presumed to be 
aware of the fact that the written statement of K was on record or 
else it would not have fixed the next date for settling ‘issues’ – In 
a situation where maintainability of the suit was in question and 
despite S not having filed his written statement, it was not a case 
where the Trial Court could simply pronounce judgment without 
even recording a satisfaction that it had the jurisdiction to try 
the suit and adjudicate the contentious issue(s), not to speak of 
pronouncing its verdict against S without assigning a single reason 
by treating the averments in the plaint to be admitted – The High 
Court rightly observed that even on pronouncement of judgment 
against S, the lis remained alive as against K and decision on the 
objection as to maintainability could have resulted in a contrary 
decision – In the matter at hand, the filing of the written statement 
by K denying the averments made in the plaint warranted that the 
appellants’ claims be proved by evidence, oral and/or documentary, 
instead of decreeing the suit against one of the defendants in a 
most slipshod manner – As far as the objection available to the 
respondents 1 to 3 u/s. 47 of CPC is concerned, it is the settled 
position of law that the powers of an executing court, though 
narrower than an appellate or revisional court, can be exercised 
to dismiss an execution application if the decree put to execution 
is unmistakably found to suffer from an inherent lack of jurisdiction 
of the court that made the same rendering it a nullity in the eyes 
of law – The Executing Court and the High Court were right in 
holding that the objection raised by the respondents 1 to 3 to the 
executability of the decree was well-founded – Further, the decision 
rendered by a court on the merits of a controversy in favour of the 
plaintiff without first adjudicating on its competence to decide such 
controversy would amount to a decision being rendered on an illegal 
and erroneous assumption of jurisdiction and, thus, be assailable 
as lacking in inherent jurisdiction and be treated as a nullity in the 
eyes of law; as a logical corollary, the order dated 05.08.1991 is 
held to be ab initio void and the decree drawn up based thereon 
is inexecutable – That apart, the order dated 05.08.1991 does not 
reveal any adjudication leadin

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