January 13, 2024 In Uncategorized



A three-Judge Bench of the Supreme Court comprising of Justice B.R. Gavai, Justice Dipankar Datta and Justice Aravind Kumar passed an Order dated 12.01.2024 in Civil Appeal No. 9695 of 2013 in Asma Lateef & Anr. Vs. Shabbir Ahmad & Ors. and held that the Trial Court had no authority to pass a decree exercising its power under Rule 10 of Order VIII, Code of Civil Procedure 1908 (CPC) (Procedure when party fails to present written statement called for by Court )and thereby upheld the decision of the High Court of Allahabad.


1) The Appellants, Ms. Asma Lateef and another claimed that their great-grandmother, one Khatoon Jannat Bibi, had orally gifted them a property (“Suit Property”) on 16.08.1998, whereafter a Memorandum recording the same was also executed before the relevant Tehsildar stating that they were in peaceful possession of the said Suit Property continuously.

2) The Appellants, the then Plaintiffs, through their Power of Attorney holder, instituted a Civil Suit (“Suit”) bearing Original Suit No. 58 of 1990 before the Trial Court under Section 38 of the Specific Relief Act, 1963 (“SRA”) (Perpetual injunction when granted) against the Defendants, (i) Asad Ullah Kazmi (Kazmi), son of Khatoon Jannat Bibi named, (ii) Kazmi’s son, Samiullah (Defendant no. 2) and (iii) one purported caretaker, Mr. Ram Chandra Yadav (Defendant no. 3) in respect of the Suit Property.

3) The Appellants prayed for permanent injunction against the three Defendants from interfering with the Appellants’ peaceful possession of the Suit Property.

4) Further, Kazmi, sometime in 1990, initiated proceedings for declaration of his rights with respect to the Suit Property before the Sub-Divisional Officer under Section 229B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (UPZA & LR Act) (Declaratory suit by person claiming to be an asami of a holding or part thereof). The said hearings were dismissed on 27.02.1999, four years after Kazmi’s death.

5) That in the Suit, an Application for interim injunction was filed by the Appellants. The same was allowed by the Trial Court, vide Order dated 31.05.1990, which directed Kazmi and Samiullah to maintain the status quo with regard to the Suit Property and directed them to not interfere with the Appellants’ peaceful possession.

6) Further, Kazmi filed a Written Statement in the Suit on 05.12.1990, wherein, he inter alia contended that the Suit was barred by Section 331 of UPZA & LR Act (Cognizance of soils, etc.) and not maintainable before a Civil Court, as the Suit Property was bhoomidhari land.

7) That it was averred by Kazmi that the Suit was barred by Section 41 (h) of SRA (Injunction when refused); further, he also contended that the Defendant no. 2 had no concern with the Suit Property as long as Kazmi is alive and hence, Samiullah had been wrongly impleaded as Defendant no. 2.

8) That, Kazmi also denied that Khatoon Jannat Bibi had the right to make an oral gift, as she had only a life interest in the Suit Property, and after her demise, the same developed upon him exclusively. There was no written statement filed on behalf of the other two Defendants.

9) Further, the Appellants moved an Application under Order VIII- Rules 5 CPC (Specific denial) and 10 of CPC (Procedure when party fails to present written statement in the Court) for pronouncement of the Judgement against Samiullah, and the same was allowed by the Trial Court, vide Order dated 05.08.1991 (Decree).

10) Subsequently, the Trial Court, on 10.10.1991, framed 11 issues for consideration in the Suit, of which the very first one was on its competency to try the Suit.

11) Meanwhile, Kazmi passed away on 15.07.1995, after which his sons, Samiullah and Fariduddin [Respondents 4 and 5 herein respectively] transferred the Suit Property to the Respondents 1 to 3 (“Purchasers”) vide a Sale Deed dated 03.11.1997. The Suit against Kazmi remained pending even after his demise, and none of his other heirs or legal representatives were brought on record as substituted Defendants. The Suit against Kazmi was finally dismissed as abated on 27.04.2009.

12) The Appellants, as purported Decree Holders, filed an Execution Application No. 58 of 1997 before the Executing Court, on 16.12.1997, praying that the Respondents 4 and 5 be punished for violating the Trial Court Order dated 05.08.1991 and that the Sale Deed dated 03.11.1997 executed by them in favour of the Purchasers be declared invalid.

13) The Executing Court, vide an Interim Order dated 16.01.1998, restrained the Purchasers from interfering in any manner with the Suit Property.

14) Thereupon, the Purchasers filed their objection under Section 47 CPC, wherein they submitted, inter alia, that the Decree of 05.08.1991 was neither a Judgment nor a Decree and could not be executed. The Executing Court, on 19.03.2008, allowed the objections of the Respondents 1- 3, resulting in dismissal of the Execution Application.

15) A Revision was filed by the Appellants against the Executing Court’s Order dated 19.03.2008 before the Revisional Court, which, vide its Order dated 21.02.2009, dismissed the objection filed by the Respondents 1 to 3 and directed the Executing Court to proceed with the execution of the Decree whilst treating such objection as non-maintainable.

16) The Revisional Order dated 21.02.2009 was challenged by the Respondents 1 to 3 in an Application under Article 227 of the Constitution before the High Court of Judicature at Allahabad (“High Court”, hereafter). The High Court, by its Judgment and Order dated 04.02.2011, 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.

17) Aggrieved by the Order dated 04.02.2011, the Appellants filed Civil Appeal No. 9695 of 2013 before the Supreme Court.


The Apex Court vide Order dated 12.01.2024, made the following observations:

i) The Supreme Court observed that a sole question of law which arose for a decision in this Appeal was:

Whether the order dated 05.08.1991 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 under section 47, CPC by the Respondents 1 to 3?

ii) The Apex Court further observed that Rule 10 of Order VIII CPC, which was used as the primary source of power by the Trial Court in passing the Order dated 05.08.1991 against Samiullah, postulated the procedure that could be adopted when a party fails to present its written statement upon the same being called for by the Court. Rule 10 reads as follows:

“10. Procedure when party fails to present written statement called for by Court.— Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.”

iii) The Division Bench observed that they had no hesitation to hold that Rule 10 was permissive in nature, enabling the Trial Court to exercise, in a given case, either of the two alternatives open to it. The Supreme Court further observed that;

Notwithstanding the alternative of proceeding to pronounce a Judgment, the Court still had an option not to pronounce Judgment and to make such Order in relation to the Suit it considered fit. The verb ‘shall’ in Rule 10 [although substituted for the verb ‘may’ by the Amendment Act of 1976] does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a written statement is invited fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which ‘shall’ equally applies would be rendered otiose.

iv) The Apex Court relied on the case of Balraj Taneja v. Sunil Madan (1999) 8 SCC 396 to examine the scope of Rule 10 of Order VIII CPC. The Supreme Court ruled that a court is not supposed to pass a mechanical judgement invoking Rule 10 of Order VIII of CPC, merely on the basis of the plaint, upon failure of a Defendant to file a written statement.

v) The Supreme Court further observed that only on being satisfied that there was no fact which needed to be proved on account of deemed admission, the Bench could pass a judgment against the defendant who did not file the written statement; but if the plaint itself suggested involvement of disputed questions of fact, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts.

vi) That in the present case, Kazmi had filed the Written Statement dealing with the Appellants’ Plaint before the Order dated 05.08.1991 was passed, wherein he had not only denied the assertions made in the Plaint, but he had also specifically objected to the maintainability of the Suit before the Trial Court.

vii) That in a situation where the maintainability of the Suit was in question and despite Samiullah 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 Samiullah without assigning a single reason by treating the averments in the plaint to be admitted.

viii) That the High Court rightly observed that even on the pronouncement of Judgment against Samiullah, the lis remained alive as against Kazmi and the decision on the objection as to maintainability could have resulted in a contrary decision.

ix) The Apex Court observed that the filing of the written statement by Kazmi 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.

x) The Court further observed that the main duty for them is to ascertain whether the Decree drawn up on the basis of the Order dated 05.08.1991 and put to execution by the Appellants could have been objected to by the Respondents 1 to 3 as inexecutable under Section 47 CPC.

xi) The Court relied upon the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman (1970) 1 SCC 670, wherein the Apex Court was considering the scope of objection under Section 47 of the CPC in relation to the executability of a decree. Therein, it was laid down that only such a decree could be the subject-matter of objection which is a nullity and not a decree which was erroneous either in law or on facts. The law was laid down in the following terms:

“6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction….”

(underlining ours, for emphasis)

xii) The legality of the Order of the High Court, together with the Order of the Executing Court that the former went on to uphold, was to be tested having regard to the settled position of law and bearing in mind 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 was unmistakably found to suffer from an inherent lack of jurisdiction of the court that made the same, rendering it a nullity in the eye of law.

xiii) The Court further observed that the question that arose was the importance of the legal term ‘jurisdiction’, and the question whether the Trial Court did have the jurisdiction to pass the Order it did on 05.08.1991 followed by the Decree signed on 11.11.1991.

xiv) That the Bench must not only have the jurisdiction in respect of the subject matter of dispute for the purpose of entertaining and trying the claim but also the jurisdiction to grant relief that is sought for. Once it is conceded that the jurisdiction on both counts is available, it is immaterial if jurisdiction is exercised erroneously.

xv) The Apex Court further observed that, Kazmi had challenged the maintainability of the Suit in the Written Statement filed by him before the Trial Court contending inter alia that the Suit Property was bhoomidhari land owing to which the Suit was barred by Section 331 of UPZA & LR Act as well as it was barred under Section 41(h) of the SRA and, thus, not maintainable before the Civil Court. Further, the Trial Court had to in such a situation, record a satisfaction, at least prima facie, that the Suit was maintainable and then proceed to pass such Orders as it considered proper in the circumstances but the same was not followed by the Trial Court.

xvi) The Supreme Court further held as follows:

‘that a 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 eye 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.’

xvii) That the Bench held that a decree that follows a judgment or an order (of the present nature) would be inexecutable in the eyes of law and execution thereof, if sought for, would be open to objection in an Application under Section 47, CPC.


The Supreme Court held that the Trial Court had no authority to decree the Suit against Samiullah in exercise of its power under Rule 10 of Order VIII, CPC. The Order dated 04.02.2011 of the High Court was upheld and thereby dismissed the Order dated 05.08.1991 of the Trial Court and the Appeal, accompanied by any pending Applications were dismissed.


Kartik Khandekar


The Indian Lawyer

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