DHURANDHAR PRASAD SINGH versus JAI PRAKASH UNIVERSITY AND ORS.

Citation: [2001] 3 S.C.R. 1129 · Decided: 24-07-2001 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Appeal(s) allowed

Cited by 8 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

DHURANDHAR PRASAD SINGH 
A 
--'< 
v. 
JAI PRAKASH UNIVERSITY AND ORS. 
JULY 24, 2001 
[G.B. PATTANAIK AND B.N. AGRAWAL, JJ.) 
B 
Code of Civil Procedure, 1908: 
Section 47-Exercise of powers under-Scope and ambit of-Held: 
Decree can be set aside if the same is void ab initio and a nullity-But decree c 
passed without impleading a party is not void ab initio so as to entail its 
dismissal-Such a decree has to be challenged by filing a properly constituted 
suit. 
Order 22 Rule I 0-Pendency of suit-Devolution of interest during-
Leave to continue suit-Held: Initial duty lies upon the plaintiff to seek leave D 
to continue suit-But the person upon whom interest has devolved, or any 
... _ _}, 
person interested, may also apply for such a leave so that his interest may 
be properly represented. 
The appellant-plaintiff filed a suit for declaration that the order passed 
by respondent No. 3 (defendant No. 2) terminating the services of the appellant E 
was illegal. The suit was decreed ex parte. In the execution application filed 
by the appellant, the respondent-University raised an objection under Section 
47 of the Code of Civil Procedure, 1908 on the ground that during pendency 
of the suit the college in question became the consituent unit of the 
respondent-University which was not impleaded as a party in the suit and, F 
therefore, the ex parte decree was not executable. The executing court 
rejected the application. However, High Court allowed the revision. Hence 
this appeal. 
i ' 
On behalf of the appellant it was contended that as the college was 
taken over by the respondent-University it was a case of devolution of interest G 
-. 
during pendency of the suit within the meaning of Order 22 Rule 10 CPC; 
that the respondent-University did not take any steps to seek leave to continue 
' -'( 
the suit under Order 22 Rule 10; and, therefore, the ex parte decree was 
executable. 
On behalf of the respondent-University it was contended that it was the H 
1129 
1130 
SUPREME COURT REPORTS 
[2001] 3 S.C.R. 
A duty of the appellant-plaintiff who was prosecuting the suit for bringing the 
University on record under Order 22 Rule 10 for effective relief. 
The following questions arose before this Court :-
1. Whether in a case of devolution of interest during the pendency of 
B a suit as postulated under Order 22 Rule 10 of the Code of Civil Procedure, 
1908, decree passed against the predecessor-in-interest without bringing 
the successor-in-interest on the record would make the decree a nullity and 
the same can be executed against such a person who was not impleaded as 
a party? 
C , 
2. Whether an application under Order 22 Rule 10 seeking leave of 
the Court is required under law to be filed by that person alone upon whom 
interest has devolved during the pendency of the suit and by nobody else? 
Allowing the appeal, the Court 
D 
HELD : 1. The exercise of powers under Section 47 of the Code of Civil 
Procedure, 1908 is microscopic and lies in a very narrow inspection hole. 
Thus, it is plain that executing Court can allow objection under Section 47 
of the Code to the executability of the decree if it is found that the same is 
void ab initio and a nullity, apart from the ground that the decree is not 
capable of execution under the law either because the same was passed in 
E ignorance of such a provision of law or the law was promulgated making a 
decree inexecutable after its passing. In the case on hand, the decree was 
passed against the College which was defendant without seeking leave of the 
Court to continue the suit against the University upon whom the interest of 
the original defendant devolved and impleading it. Such an omission would 
F not make the decree void ab initio so as to invoke the application of Section 
47 of the Code and entail dismissal of execution. The validity or otherwise 
of a decree may be challenged by filing a properly constituted suit or taking 
any other remedy available under the law on the ground that the' original 
defendan~ absented himself from the proceeding of the suit after appearance 
as it had not longer any interest in the subject of dispute or ·did not purposely 
G take interest in the proceeding or colluded with the adversary or any other 
ground permissible under the law. (1143-E-H] 
Moti Lal v. Karab-ud-Din, (1898) 25 Cal. 179; Prannath v. Rookea 
Begum, (1851-59) 7 MIA 323; Smt. Saila Bala Dassi v. Smt. Nirmala Sundari 
Dassi, AIR (1958) SC 394; Rikhu Dev, Che/a 

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