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:

* 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.

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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 leading to determination of the rights of the

parties in relation to any of the matters in controversy in the suit and,

therefore, the decree since drawn up is not a formal expression of 

[2024] 1 S.C.R. 519

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

an adjudication/determination since there has been no adjudication/

determination so as to conform to the requirements of a decree

within the meaning of section 2(2) of CPC – Therefore, the trial

Court had no authority to decree the suit against S in exercise of

its power u/r.10 of Or.VIII, CPC – No reason to interfere with the

judgment of the High Court. [Paras 6,20,29,41,50,52]

Code of Civil Procedure, 1908 – r.10 of Or. VIII – Scope and

extent of power – Discussed. [Paras 13, 14, 15, 16, 17]

Code of Civil Procedure, 1908 – rr. 5, 10 of Or. VIII – When

the defendant defaults in filing written statement – What is

required by the plaintiff:

Held: In a given case, the defendant defaults in filing written

statement and the first alternative were the only course to be

adopted (pronouncing judgment against defendant), it would

tantamount to a plaintiff being altogether relieved of its obligation

to prove his case to the satisfaction of the court – Generally, in

order to be entitled to a judgment in his favour, what is required of

a plaintiff is to prove his pleaded case by adducing evidence – Rule

10, in fact, has to be read together with Rule 5 of Order VIII and the

position seems to be clear that a trial court, at its discretion, may

require any fact, treated as admitted, to be so proved otherwise

than by such admission – Since facts are required to be pleaded

in a plaint and not the evidence, which can be adduced in course

of examination of witnesses, mere failure or neglect of a defendant

to file a written statement controverting the pleaded facts in the

plaint, in all cases, may not entitle him to a judgment in his favour

unless by adducing evidence he proves his case/claim. [Para 18]

Code of Civil Procedure, 1908 – Jurisdiction – Essence of:

Held: The essence really is that a court 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 – An erroneous decision cannot be labelled as having

been passed ‘without jurisdiction’ – It is, therefore, imperative that

the distinction between a decision lacking in inherent jurisdiction and

a decision which suffers from an error committed in the exercise

of jurisdiction is borne in mind. [Para 35]

520 [2024] 1 S.C.R.

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Code of Civil Procedure, 1908 – Jurisdiction – Determination

of question of jurisdiction by civil Court:

Held: Jurisdiction is the entitlement of the civil court to embark upon

an enquiry as to whether the cause has been brought before it by

the plaintiff in a manner prescribed by law and also whether a good

case for grant of relief claimed been set up by him – As and when

such entitlement is established, any subsequent error till delivery

of judgment could be regarded as an error within the jurisdiction

– The enquiry as to whether the civil court is entitled to entertain

and try a suit has to be made by it keeping in mind the provision

in section 9, CPC and the relevant enactment which, according

to the objector, bars a suit – The question of jurisdiction has to

be determined at the commencement and not at the conclusion

of the enquiry. [Para 38]

Code of Civil Procedure, 1908 – Jurisdiction – Question of

jurisdiction at the stage when a Court considers the question

of grant of interim relief:

Held: Where interim relief is claimed in a suit before a civil court

and the party to be affected by grant of such relief, or any other

party to the suit, raises a point of maintainability thereof or that

it is barred by law and also contends on that basis that interim

relief should not to be granted, grant of relief in whatever form,

if at all, ought to be preceded by formation and recording of at

least a prima facie satisfaction that the suit is maintainable or that

it is not barred by law – It would be inappropriate for a court to

abstain from recording its prima facie satisfaction on the question

of maintainability, yet, proceed to grant protection pro tem on the

assumption that the question of maintainability has to be decided

as a preliminary issue under Rule 2 of Order XIV, CPC – That

could amount to an improper exercise of power – If the court is

of the opinion at the stage of hearing the application for interim

relief that the suit is barred by law or is otherwise not maintainable,

it cannot dismiss it without framing a preliminary issue after the

written statement is filed but can most certainly assign such opinion

for refusing interim relief – However, if an extraordinary situation

arises where it could take time to decide the point of maintainability

of the suit and non-grant of protection pro tem pending such

decision could lead to irreversible consequences, the court may

proceed to make an appropriate order in the manner justifying the 

[2024] 1 S.C.R. 521

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

course of action it adopts – In other words, such an order may

be passed, if at all required, to avoid irreparable harm or injury or

undue hardship to the party claiming the relief and/or to ensure

that the proceedings are not rendered infructuous by reason of

non-interference by the court. [Para 39]

Judgment/Order – Cardinal principle of:

Held: It is one of the cardinal principles of the justice delivery

system that any verdict of a competent judicial forum in the form

of a judgment/order, that determines the rights and liabilities of

the parties to the proceedings, must inform the parties what is the

outcome and why one party has succeeded and not the other - the

‘why’ constituting the reasons and ‘what’ the conclusion – Apart

from anything else, insistence of the requirement for the reason(s)

to support the conclusion guarantees application of mind by the

adjudicator to the materials before it as well as provides an avenue

to the unsuccessful party to test the reasons before a higher court

– All civil courts in the country have to regulate their judicial work

in accordance with the terms of the provisions of the CPC – Any

egregious breach or violation of such provisions, would be ultra

vires. [Paras 47, 48]

Case Law Cited

Balraj Taneja v. Sunil Madan, [1999] 2 Suppl. SCR

258 : (1999) 8 SCC 396; Vasudev Dhanjibhai Modi v.

Rajabhai Abdul Rehman, [1971] 1 SCR 66 : (1970) 1

SCC 670; Dhurandhar Prasad Singh v. Jai Prakash

University, [2001] 3 SCR 1129 : (2001) 6 SCC 534;

Official Trustee v. Sachindra Nath Chatterjee, [1969]

SCR 92 : AIR 1969 SC 823; Rafique Bibi v. Sayed

Waliuddin, [2003] 3 Suppl. SCR 100 : (2004) 1 SCC

287 – relied on.

Surjit Singh and Others v. Harbans Singh and Others,

[1995] 3 Suppl. SCR 354 : (1995) 6 SCC 50; Manohar

Lal v. Ugrasen, [2010] 7 SCR 346 : (2010) 11 SCC

557; Hukam Chand v. Om Chand, (2001) 10 SCC 715;

Nagubai Ammal v. B. Shama Rao, [1956] SCR 451 :

AIR 1956 SC 593; Swaran Lata Ghosh v. H.K. Banerjee,

[1969] 3 SCR 976 : (1969) 1 SCC 709; Balvant N.

Viswamitra v. Yadav Sadashiv Mule, [2004] 3 Suppl.

SCR 519 : (2004) 8 SCC 706 – referred to.

522 [2024] 1 S.C.R.

Digital Supreme Court Reports

Hirday Nath Roy v. Ramachandra Barna Sarma, 1920

SCC OnLine Cal 85 : ILR LXVIII, Cal 138 – referred to.

Books and Periodicals Cited

Hon’ble P.B. Mukharji, CJ., The New Jurisprudence:

The Grammar of Modern Law – referred to.

List of Acts

Code of Civil Procedure, 1908 ; Uttar Pradesh Zamindari Abolition

and Land Reforms Act, 1950.

List of Keywords

Jurisdictional error; Essence of jurisdiction; Question of jurisdiction;

Lack in inherent jurisdiction; Cardinal principle of judgment; Powers

of an executing court; Objection against execution of decree;

Executability of the decree; Inexecutable decree; Requirements

of a decree.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9695 of 2013.

From the Judgment and Order dated 04.02.2011 of the High Court of

Judicature at Allahabad in CMWP No.15236 of 2009.

Appearances for Parties

Ms. Meenakshi Arora, Sr. Adv., Rahul Narayan, Shashwat Goel,

Vishal Kr. Kaushik, Advs. for the Appellants.

Ms. Preetika Dwivedi, Abhishek Chaudhary, Adarsh Upadhyay, Advs.

for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Dipankar Datta, J.

The Challenge

1. Respondents 1 to 3 had filed an objection under section 47 of the

Code of Civil Procedure, 1908 (“CPC”, hereafter) in an execution

application filed before the Executing Court by the appellants. It was

urged, based on the case pleaded therein, that the decree put to 

[2024] 1 S.C.R. 523

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

execution was inexecutable. The Executing Court, on 19th March,

2008, allowed the objections of the respondents 1 to 3, resulting in

dismissal of the execution application.

2. A revision was carried by the appellants from the order dated 19th

March, 2008 before the Revisional Court which, vide its order dated

21st February, 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.

3. The revisional order dated 21st February, 2009 was challenged by

the respondents 1 to 3 in an application under Article 227 of the

Constitution1

 before the High Court of Judicature at Allahabad (“High

Court”, hereafter). The High Court, by its judgment and order dated

4th February, 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.

4. This appeal, by special leave, registers a challenge to the said

judgment and order of the High Court.

Factual Conspectus

5. Having regard to the nature and extent of controversy raised at the

stage of execution, a decision on this appeal does not necessitate

noting the facts triggering it and the rival contentions in great depth;

however, we propose to briefly narrate the essential facts and

submissions advanced by learned counsel for the parties before

recording our conclusions.

6. The relevant facts, shorn of unnecessary details, are noticed

hereunder:

a. Appellants claimed that their great-grandmother, one Khatoon

Jannat Bibi, had orally gifted them a certain property (“suit

property”, hereafter) on 16th August, 1988 whereafter a

memorandum recording the same was also executed before

the relevant tehsildar and that they were in peaceful possession

of the same continuously.

b. Appellants, as plaintiffs, through their power of attorney holder,

1 Civil Misc. Writ Petition No. 15236 of 2009

524 [2024] 1 S.C.R.

Digital Supreme Court Reports

instituted a civil suit2

 (“Suit”, hereafter) before the Trial Court

under section 38 of the Specific Relief Act, 1963 (“Specific Relief

Act”, hereafter) against three defendants - a son of Khatoon

Jannat Bibi named Asad Ullah Kazmi [defendant no. 1] (“Kazmi”,

hereafter), Kazmi’s son Samiullah [defendant no. 2] and one

purported caretaker, Mr. Ram Chandra Yadav [defendant no. 3]

in respect of the suit property, more particularly described in the

plaint. Appellants prayed for a permanent injunction against the

three defendants from interfering with the appellants’ peaceful

possession of the suit property.

c. Kazmi, sometime in 1990, initiated proceedings for declaration

of rights before the Sub-Divisional Officer under section 229B

of the Uttar Pradesh Zamindari Abolition and Land Reforms

Act, 1950 (“UPZA & LR Act”, hereafter); the said proceedings

were, however, dismissed on 27th February, 1999 [4 (four) years

after his death].

d. In the Suit, an application for interim injunction was filed by

the appellants. The Trial Court on 31st May, 1990, allowed the

application and directed Kazmi and Samiullah to maintain status

quo with regard to the suit property, and directed them not to

interfere with the appellants’ peaceful possession thereof.

e. Kazmi filed his written statement in the Suit on 5th December,

1990 where he inter alia contended that the Suit was barred

by section 331 of the UPZA & LR Act and not maintainable

before a civil court since the suit property was bhoomidhari

land. It was further averred that the Suit was barred by section

41(h) of the Specific Relief Act; he also contended that his son

Samiullah, the defendant no.2, had no concern with the suit

property as long as his father (Kazmi) was alive and, hence,

Samiullah had been wrongly impleaded as the defendant no.2.

Kazmi also denied that Khatoon Jannat Bibi had the right to

make any oral gift; inasmuch as she had only a life interest in

the property, after her demise, the same devolved upon him

exclusively.

f. It is to be noted that no written statement was filed on behalf

2 Original Suit No. 58 of 1990

[2024] 1 S.C.R. 525

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

of the other two defendants.

g. Upon the appellants moving an application under Rules 5 and

10 of Order VIII, CPC for pronouncement of judgment against

Samiullah, the same was allowed by the Trial Court by its

order dated 5th August, 19913

, to which we propose to advert

in course of our analysis.

h. Subsequently, the Trial Court, on 10th October, 1991, framed 11

(eleven) issues for consideration in the Suit, of which the very

first one was on its competency to try the Suit.

i. Kazmi passed away on 15th July, 1995, after which his sons,

Samiullah and Fariduddin [respondents 4 and 5 herein]

transferred the suit property to the respondents 1 to 3

(“Purchasers”, hereafter) vide a sale deed dated 3rd November,

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 27th April, 2009.

j. Appellants, as purported decree holders, filed an execution

application4

 before the Executing Court, on 16th December, 1997,

praying that respondents 4 and 5 be punished for violating the

order dated 5th August, 1991 and that the sale deed dated 3rd

November, 1997 in favour of the Purchasers be declared invalid.

k. The Executing Court, vide an interim order passed on 16th

January, 1998, restrained the Purchasers from interfering in

any manner with the suit property.

l. Thereupon, the Purchasers filed their objection under section

47, CPC wherein they submitted, inter alia, that the order dated

5th August, 1991 was neither a judgment nor a decree and

could not be executed.

m. Further, on 7th December, 2004, the appellants filed a contempt

petition5

 against the respondents alleging contempt of orders

dated 31st May, 1990 and 5th August 1991, and the Executing

3 The decree was signed on 11th November, 1991.

4 Execution Application No. 58 of 1997

5 Civil Misc Contempt Petition No. 62 of 2004

526 [2024] 1 S.C.R.

Digital Supreme Court Reports

Court order dated 16th January, 1998 by interfering with the

appellants’ possession of the suit property.

n. These events were followed by the proceedings and the

judgments/orders referred to in paragraphs 1 to 4 hereinabove.

Impugned Judgment

7. The Purchasers invoked the appropriate jurisdiction of the High Court

by challenging the order dated 21st February, 2009 of the Revisional

Court. The High Court formulated two points for determination, viz.

(i) whether the petitioners before it (respondents 1 to 3 herein),

who are subsequent purchasers of the suit property, had any right

to maintain an objection under section 47, CPC against execution

of the decree? and (ii) whether the order dated 5th August, 1991,

passed in purported exercise of power under Rule 10 of Order VIII,

CPC decreeing the suit against Samiullah alone is without jurisdiction

and a nullity which is non est and inexecutable in nature? The High

Court also framed an ancillary point as to whether the sale deed

dated 23rd November, 1997 made by Samiullah in favour of the

Purchasers was null and void.

8. While the two main points were answered in the affirmative, the

ancillary point was answered in the negative. In course of rendering

its judgment, the High Court held the order dated 5th August, 1991,

and consequently the decree drawn on the basis thereof, to be

beyond jurisdiction and a nullity. The High Court was also of the

opinion that the revisional order dated 21st February, 2009 deserved

to be set aside and the writ petition allowed, which it duly ordered.

The parties were granted liberty to take recourse to available legal

remedies to have determination of the title to the suit property

adjudicated. Certain salient observations made by the High Court

in the impugned judgment are summarised below for convenience:

a. The order dated 5th August 1991, passed by the Trial Court,

in the Suit, restrained only the defendant no.2 from interfering

with the peaceful enjoyment of the appellants’ rights relating

to the suit property, but did not restrict the sons of Kazmi from

dealing with or transferring the same.

b. The transfer of the suit property was not in derogation

of section 52 of the Transfer of Property Act, 1882 (“ToP

Act”, hereafter) and that the Purchasers could object to the 

[2024] 1 S.C.R. 527

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

appellants’ execution application.

c. It is a cardinal principle that to succeed in a suit for permanent

prohibitory injunction, the plaintiff must either establish title,

proprietary rights over the suit property or prove possession

over the same; however, the Trial Court had not found either

the title of the plaintiffs or proved their possession in respect

of the suit property.

d. A court need not always pronounce judgment on the facts

of a plaint or on those admitted due to non-filing of a written

statement or want of specific denial. A court has the option

of pronouncing judgment only in cases where it deems it

prudent; it also has the option to pass such an appropriate

order as it seems fit.

e. A reading of Rules 1, 5 and 10 of Order VIII, CPC show that

they concern themselves with only a single defendant to a

suit and not several defendants. The Trial Court, instead,

could have proceeded to hear the Suit ex parte under Rule

11 of Order IX, CPC since Kazmi’s written statement was on

the record. Hence, the Trial Court had no authority in law to

decree the Suit against one defendant without adjudicating

upon the controversy involved.

f. The order dated 5th August, 1991 was not a judgment within

the scope of section 2(9) read with Rule 4(2) of Order XX,

CPC and did not meet the basic requirements of a “judgment”

and a decree as per section 2(9) and 2(2), CPC, respectively.

Rival Contentions

9. Ms. Meenakshi Arora, learned senior counsel for the appellants while

seeking our interference with the impugned judgment submitted as

under:

a. The High Court fell into error by not appreciating the fact that

the Executing Court exceeded its jurisdiction by going behind

the order dated 5th August, 1991 and the decree that was drawn

up in terms thereof, returning a finding that the same was not

executable.

528 [2024] 1 S.C.R.

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b. Samiullah had been provided ample opportunity to file his

written statement but had failed to do so. In any event, the

order dated 5th August, 1991 had not been challenged, and

had attained finality.

c. The Trial Court, vide an interim order dated 31st May, 1990, had

directed Kazmi and Samiullah to maintain status quo and not

interfere with the peaceful possession of the suit property, by the

appellants. The High Court had erroneously held that a perusal

of the aforementioned order did not indicate any rider placed

upon the parties from alienating the suit property, and that the

sale deed dated 3rd November, 1997 was validly entered into.

d. The Purchasers were purchasers pendente lite and could not

have purchased the suit property without leave of the Trial Court.

The decisions in Surjit Singh and Others v. Harbans Singh

and Others6

 and Manohar Lal v. Ugrasen7

 were referred to in

support of the contentions that the transfer of property during

pendency of proceedings and also in contravention of the interim

order of injunction was impermissible.

e. Further, the Purchasers forcibly dispossessed the appellants of

their peaceful possession of the suit property on 10th October,

2004 in gross violation of the injunction order dated 16th January,

1998 passed by the Executing Court.

f. Reliance placed by the High Court on Balraj Taneja v. Sunil

Madan8 was misplaced in the present case as this Court, in

Balraj Taneja (supra), while holding that reasons must be given

while decreeing a suit under Rule 10 of Order VIII, CPC, was

seized of a matter where the decree was challenged in appellate

proceedings. In the present case, the decree was sought to be

declared inexecutable in execution proceedings, far beyond the

reach of such a narrow jurisdiction.

10. Ms. Preetika Dwivedi, learned counsel for the Purchasers (respondents

1 to 3) in support of upholding of the impugned judgment, submitted

as under:

6 (1995) 6 SCC 50

7 (2010) 11 SCC 557

8 (1999) 8 SCC 396

[2024] 1 S.C.R. 529

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

a. The order dated 5th August, 1991 passed by the Trial Court is

not a judgment within the scope of section 2(9) read with Rule

4 of Order XX, CPC and the principle of law laid down in Balraj

Taneja (supra) was rightly applied by the High Court.

b. The High Court had rightly granted all the parties liberty to have

the title to the suit property adjudicated by the appropriate forum;

hence, it could not be said that the appellants were prejudiced

in any manner whatsoever. Further, any question relating to the

title, and validity of the sale deed in favour of the Purchasers

could be determined by the appropriate forum.

c. At the time of purchase, the names of Kazmi’s sons, i.e.

respondents 4 and 5, were present in the land revenue records

pertaining to the suit property, after which the Purchasers’ names

have been inserted through mutation.

d. As per the law laid down in Hukam Chand v. Om Chand9 and

Nagubai Ammal v. B. Shama Rao10, the transfer of the suit

property was not in violation of section 52, ToP Act since the

statute did not put an absolute embargo on the transfer of such

property pendente lite.

Analysis

11. We have heard learned counsel for the parties and perused the

impugned judgment as well as the other materials on record.

12. The sole question of law which arises for a decision in this appeal is:

Whether the order dated 5th August, 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?

13. Prior to answering the above question, we consider it appropriate

to examine the scope and extent of power exercisable under Rule

10 of Order VIII, CPC.

9 (2001) 10 SCC 715

10 AIR 1956 SC 593

530 [2024] 1 S.C.R.

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14. Rule 10 of Order VIII, CPC, used as the primary source of power by

the Trial Court in passing the order dated 5th August, 1991 against

Samiullah, postulates 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.”

15. We have no hesitation to hold that Rule 10 is permissive in nature,

enabling the trial court to exercise, in a given case, either of the two

alternatives open to it. Notwithstanding the alternative of proceeding to

pronounce a judgment, the court still has an option not to pronounce

judgment and to make such order in relation to the suit it considers

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.

16. At this stage, we consider it apposite to take a quick look at Balraj

Taneja (supra) to examine the scope of Rule 10 of Order VIII. Therein,

this Court ruled that a court is not supposed to pass a mechanical

judgment invoking Rule 10 of Order VIII, CPC merely on the basis of

the plaint, upon the failure of a defendant to file a written statement.

The relevant paragraphs of the judgment are reproduced below for

convenience:

“29. As pointed out earlier, the court has not to act blindly

upon the admission of a fact made by the defendant in

his written statement nor should the court proceed to pass

judgment blindly merely because a written statement has 

[2024] 1 S.C.R. 531

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

not been filed by the defendant traversing the facts set

out by the plaintiff in the plaint filed in the court. In a case,

specially where a written statement has not been filed

by the defendant, the court should be a little cautious in

proceeding under Order 8 Rule 10 CPC. Before passing

the judgment against the defendant it must see to it that

even if the facts set out in the plaint are treated to have

been admitted, a judgment could possibly be passed in

favour of the plaintiff without requiring him to prove any

fact mentioned in the plaint. It is a matter of the court’s

satisfaction and, therefore, only on being satisfied that

there is no fact which need be proved on account of

deemed admission, the court can conveniently pass a

judgment against the defendant who has not filed the

written statement. But if the plaint itself indicates that

there are disputed questions of fact involved in the case

regarding which two different versions are set out in the

plaint itself, it would not be safe for the court to pass a

judgment without requiring the plaintiff to prove the facts so

as to settle the factual controversy. Such a case would be

covered by the expression ‘the court may, in its discretion,

require any such fact to be proved’ used in sub-rule (2)

of Rule 5 of Order 8, or the expression ‘may make such

order in relation to the suit as it thinks fit’ used in Rule

10 of Order 8.”

No doubt this decision was rendered considering that the verb used

in the provision is ‘may’, but nothing substantial turns on it.

17. What emerges from a reading of Balraj Taneja (supra), with which

we wholeheartedly concur, is that only on being satisfied that there

is no fact which need to be proved on account of deemed admission,

could the court pass a judgment against the defendant who has not

filed the written statement; but if the plaint itself suggests 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.

Balraj Taneja (supra) also lays down the law that provision of Rule

10 of Order VIII, CPC is by no means mandatory in the sense that

a court has no alternative but to pass a judgment in favour of the

plaintiff, if the defendant fails or neglects to file his written statement.

532 [2024] 1 S.C.R.

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18. If indeed, in a given case, the defendant defaults in filing written

statement and the first alternative were the only course to be adopted,

it would tantamount to a plaintiff being altogether relieved of its

obligation to prove his case to the satisfaction of the court. Generally,

in order to be entitled to a judgment in his favour, what is required

of a plaintiff is to prove his pleaded case by adducing evidence.

Rule 10, in fact, has to be read together with Rule 5 of Order VIII

and the position seems to be clear that a trial court, at its discretion,

may require any fact, treated as admitted, to be so proved otherwise

than by such admission. Similar is the position with section 58 of the

Indian Evidence Act, 1872. It must be remembered that a plaint in

a suit is not akin to a writ petition where not only the facts are to be

pleaded but also the evidence in support of the pleaded facts is to

be annexed, whereafter, upon exchange of affidavits, such petition

can be decided on affidavit evidence. Since facts are required to

be pleaded in a plaint and not the evidence, which can be adduced

in course of examination of witnesses, mere failure or neglect of a

defendant to file a written statement controverting the pleaded facts

in the plaint, in all cases, may not entitle him to a judgment in his

favour unless by adducing evidence he proves his case/claim.

19. Having noted what Rule 10 of Order VIII postulates, the order dated

5th August, 1991 may be examined now since it is the genesis of

the present litigation before us. The order made by the Trial Court

on 5th August, 1991, reads as below:

“68-C application moved by the plaintiffs under Order-8

Rule-5 (2) & (3) read with Rule 10 CPC. According to the

plaintiff, Samiullah son of Asad Ullah Kazmi, defendant no.

1 has been impleaded as defendant no. 1 (sic, defendant

no. 2) as he was also threatening to encroach the right of

the plaintiff in the disputed property. He appeared through

counsel and moved application and has also filed affidavits

50-C & 57-C but he failed to file any written statement.

It is clear that so many date has been given for written

statement and lastly it was 29.4.91, which was fixed for

written statement and for issues, but the defendant has

(sic, not) filed written statement and on this ground the

plaintiff has moved the above application 68-C.

[2024] 1 S.C.R. 533

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

The learned counsel for the plaintiff has argued that he

has appeared through counsel and enough time has been

given to him calling upon him to file the written statement,

but he failed to file written statement. The case is covered

by Order-8 Rule 10 C.P.C. The defendant no. 2 remained

absent. In view of the above, I am of the opinion that it is

fit case to proceed under Order-8 Rule 10 C.P.C.

Accordingly, the suit of the plaintiffs is decreed under

Order-8 Rule 10 C.P.C. with cost against defendant no.

2. The defendant no. 2 is restrained not to interfere in the

peaceful right and enjoyment of the plaintiff in respect of

the disputed building, trees and other properties.

Fix 9.9.1991 for Issues.”

20. In the present case, Kazmi had indeed filed his written statement

dealing with the appellants’ plaint before the order dated 5th August,

1991 was made. There, not only had Kazmi denied the assertions

made in the plaint but he had also specifically objected to the

maintainability of the suit itself before the Trial Court on the ground

noted above. The Trial Court is presumed to be aware of the fact

that the written statement of Kazmi 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 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. The High Court rightly observed

that even on pronouncement of judgment against Samiullah, the lis

remained alive as against Kazmi and decision on the objection as

to maintainability could have resulted in a contrary decision.

21. No tribunal, far less a civil court, in exercise of judicial power ought

to play ducks and drakes with the rights of the parties. We are left to

wonder what would have been the status of the rival claims if Kazmi

had not passed away and accepting his objection, the Suit were

dismissed on the ground of maintainability. In such a case, could

such a dismissal be reconciled with the purported decree drawn up

against Samiullah? The answer would have to be in the negative. 

534 [2024] 1 S.C.R.

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Or, take the situation that has cropped up here. The suit has been

dismissed qua Kazmi on 27th April, 2009 as abated. Although Ms.

Arora had submitted in course of hearing that steps have since been

successfully taken to set aside abatement and an assurance was

given to file additional documents by 12th December, 2023 in support

of such a submission, the additional documents e-filed beyond time

do not reveal that (i) abatement has been set aside, (ii) the heirs/

legal representatives substituted in place of Kazmi and (iii) the suit

restored to its original file and number. The result is that the suit

stands dismissed as against the principal defendant without any

determination by the Trial Court on his objection that such court did

not possess the jurisdiction to entertain and try the suit.

22. We are constrained to observe that it is to avoid such a situation of

contradictory/inconsistent decrees that power under Rule 10 of Order

VIII ought to be invoked with care, caution, and circumspection, only

when none of several defendants file their written statements and

upon the taking of evidence from the side of the plaintiff, if deemed

necessary, the entire suit could be decided. As in the present case,

where even one of several defendants had filed a written statement, it

would be a judicious exercise of discretion for the court to opt for the

second alternative in Rule 10 of Order VIII, CPC unless, of course,

extraordinary circumstances exist warranting recourse to the first

alternative. In the matter at hand, 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.

23. We find close resemblance of the facts and circumstances under

consideration in Swaran Lata Ghosh v. H.K. Banerjee11. A money

suit instituted by the respondent before this Court was tried by the

High Court at Calcutta and after taking evidence the learned Single

Judge on 17th August, 1962, passed the following order:

“There will be a decree for Rs 15,000 with interest on

judgment on Rs 15,000 at 6% per annum and costs. No

interim interest allowed.”

11 (1969) 1 SCC 709

[2024] 1 S.C.R. 535

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

Pursuant to that order a decree was drawn up. An appeal carried

from the decree before the Division Bench failed. The Division

Bench assigned sketchy reasons for the conclusion that the Trial

Court “rightly decreed the suit” and disposed of the appeal with

certain modification of the decree. While allowing the appeal and

setting aside the decree passed by the high court and remanding

the suit to the Court of first instance for trial according to law, this

Court noted that Rules 1 to 8 of Order XX, CPC are, by the express

provision contained in Rule 3(5) of Order XLIX, CPC inapplicable to

a Chartered High Court in the exercise of its ordinary or extraordinary

original civil jurisdiction and hence, a judge of a Chartered High Court

was not obliged to record reasons in a judgment strictly according

to the provisions contained in Rules 4(2) and 5 of Order XX, CPC.

Notwithstanding such a provision, this Court proceeded to record in

paragraph 6 as follows:

“6. Trial of a civil dispute in court is intended to achieve,

according to law and the procedure of the court, a judicial

determination between the contesting parties of the matter

in controversy. Opportunity to the parties interested in the

dispute to present their respective cases on questions of

law as well as fact, ascertainment of facts by means of

evidence tendered by the parties, and adjudication by a

reasoned judgment of the dispute upon a finding on the

facts in controversy and application of the law to the facts

found, are essential attributes of a judicial trial. In a judicial

trial, the Judge not only must reach a conclusion which he

regards as just, but, unless otherwise permitted, by the

practice of the court or by law, he must record the ultimate

mental process leading from the dispute to its solution. A

judicial determination of a disputed claim where substantial

questions of law or fact arise is satisfactorily reached, only

if it be supported by the most cogent reasons that suggest

themselves to the Judge a mere order deciding the matter

in dispute not supported by reasons is no judgment at all.

Recording of reasons in support of a decision of a disputed

claim serves more purposes than one. It is intended to

ensure that the decision is not the result of whim or fancy,

but of a judicial approach to the matter in contest: it is also

intended to ensure adjudication of the matter according to

law and the procedure established by law. A party to the 

536 [2024] 1 S.C.R.

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dispute is ordinarily entitled to know the grounds on which

the court has decided against him, and more so, when

the judgment is subject to appeal. The appellate court will

then have adequate material on which it may determine

whether the facts are properly ascertained, the law has

been correctly applied and the resultant decision is just.

It is unfortunate that the learned trial Judge has recorded

no reasons in support of his conclusion, and the High

Court in appeal merely recorded that they thought that

the plaintiff had sufficiently proved the case in the plaint.”

24. However, there, it was an appellate decree which this Court was

called upon to examine. We realise that we are not examining the

correctness of a judgment/order arising from exercise of appellate

jurisdiction by the High Court but a judgment approving an order

on an objection under section 47, CPC, scope wherefor is limited.

25. Our real task is to ascertain whether the decree drawn up on the

basis of the order dated 5th August, 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. Section 47, CPC, being

one of the most important provisions relating to execution of decrees,

mandates that an executing court shall determine all questions arising

between the parties to the suit or their representatives in relation to

the execution, discharge, or satisfaction of the decree and that such

questions may not be adjudicated in a separate suit.

26. Reference to a couple of authorities on the scope and nature of

section 47, CPC, at this stage, would not be inapt.

27. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman12, this

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. 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

12 (1970) 1 SCC 670

[2024] 1 S.C.R. 537

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

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)

28. In Dhurandhar Prasad Singh v. Jai Prakash University13, this

Court further expounded the powers of a court under section 47,

CPC in the following words:

“24. The exercise of powers under Section 47 of the Code

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 law either because the same

was passed in ignorance of such a provision of law or

the law was promulgated making a decree inexecutable

after its passing….”

(underlining ours, for emphasis)

13 (2001) 6 SCC 534

538 [2024] 1 S.C.R.

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29. The legality of the order of the High Court, together with the order

of the Executing Court that the former went on to uphold, has to be

tested having regard to the settled position of law as noticed above

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 is

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.

30. For reasons more than one, we propose to hold that 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.

31. What appears to be of significance in the light of the decisions

referred to above is 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 5th August, 1991 followed by the decree

signed on 11th November, 1991.

32. What does ‘jurisdiction’ mean? In the ensuing discussion, we feel

inclined to draw guidance from certain decisions of ancient vintage

which have stood the test of time.

33. The wisdom of Sir Ashutosh Mukherjee, A.C.J., speaking for a

Full Bench of the High Court at Calcutta in Hirday Nath Roy v.

Ramachandra Barna Sarma14, more than a century back, profitably

assists us in understanding what is meant by ‘jurisdiction’, ‘lack of

jurisdiction’ and ‘error in the exercise of jurisdiction’. The relevant

passage reads as under:

“…An examination of the cases in the books discloses

numerous attempts to define the term ‘jurisdiction’, which

has been stated to be ‘the power to hear and determine

issues of law and fact’; ‘the authority by which judicial

officers take cognizance of and decide causes’; ‘the

authority to hear and decide a legal controversy’; ‘the power

to hear and determine the subject-matter in controversy

between parties to a suit and to adjudicate or exercise any

judicial power over them’; ‘the power to hear, determine

14 1920 SCC OnLine Cal 85 : ILR LXVIII, Cal 138

[2024] 1 S.C.R. 539

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

and pronounce judgment on the issues before the Court’;

‘the power or authority which is conferred upon a Court

by the legislature to bear and determine causes between

parties and to carry the judgments into effect’; ‘the power

to enquire into the facts, to apply the law, to pronounce the

judgment and to carry it into execution. … This jurisdiction

of the Court may be qualified or restricted by a variety

of circumstances. Thus, the jurisdiction may have to be

considered with reference to place, value, and nature of

the subject-matter. … This classification into territorial

jurisdiction, pecuniary jurisdiction and jurisdiction of the

subject-matter is obviously of a fundamental character.

Given such jurisdiction, we must be careful to distinguish

exercise of jurisdiction from existence of jurisdiction; for

fundamentally different are the consequences of failure

to comply with statutory requirements in the assumption

and in the exercise of jurisdiction. The authority to decide

a cause at all and not the decision rendered therein is

what makes up jurisdiction; and when there is jurisdiction

of the person and subject-matter, the decision of all

other questions arising in the case is but an exercise

of that jurisdiction. The extent to which the conditions

essential for creating and raising the jurisdiction of a

Court or the restraints attaching to the mode of exercise

of that jurisdiction should be included in the conception of

jurisdiction itself is sometimes a question of great nicety…

But the distinction between existence of jurisdiction and

exercise of jurisdiction has not always been borne in mind

and this has sometimes led to confusion. … We must

not thus overlook the cardinal position that in order that

jurisdiction may be exercised, there must be a case legally

before the Court and a hearing as well as a determination.

A judgment pronounced by a Court without jurisdiction is

void, subject to the well-known reservation that when the

jurisdiction of a Court is challenged, the Court is competent

to determine the question of jurisdiction, though the result

of the enquiry may be that it has no jurisdiction to deal

with the matter brought before it.

***

540 [2024] 1 S.C.R.

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Besides the cases mentioned therein, reference may

particularly be made to the judgment of Srinivas Aiyangar,

J., in Tuljaram v. Gopala [32 Mad. L.J. 434; 21 Mad. L.J.

220 (1916).] , where the true rule was stated to be that if a

Court has jurisdiction to try a suit and has authority to pass

orders of a particular kind, the fact that it has passed an

order which it should not have made in the circumstances

of that litigation, does not indicate total want or loss of

jurisdiction so as to render the order a nullity.”

(underlining ours, for emphasis)

34. Hirday Nath Roy (supra) found approval in Official Trustee v.

Sachindra Nath Chatterjee15, a co-ordinate Bench decision of this

Court. The relevant observations of this Court in Sachindra Nath

Chatterjee (supra) are reproduced below:

“12. It is plain that if the learned judge had no jurisdiction to

pass the order in question then the order is null and void.

It is equally plain that if he had jurisdiction to pronounce

on the plea put forward before him the fact that he made

an incorrect order or even an illegal order cannot affect

its validity. …

15. *** it is clear that before a Court can be held to have

jurisdiction to decide a particular matter it must not only

have jurisdiction to try the suit brought but must also

have the authority to pass the orders sought for. It is not

sufficient that it has some jurisdiction in relation to the

subject-matter of the suit. Its jurisdiction must include

the power to hear and decide the questions at issue, the

authority to hear and decide the particular controversy

that has arisen between the parties. …”

(underlining ours, for emphasis)

35. The essence really is that a court 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

15 AIR 1969 SC 823

[2024] 1 S.C.R. 541

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

is available, it is immaterial if jurisdiction is exercised erroneously.

An erroneous decision cannot be labelled as having been passed

‘without jurisdiction’. It is, therefore, imperative that the distinction

between a decision lacking in inherent jurisdiction and a decision

which suffers from an error committed in the exercise of jurisdiction

is borne in mind.

36. Moving on to decisions of not too distant an origin, we notice that

this Court in Rafique Bibi v. Sayed Waliuddin16 whilst relying on

Vasudev Dhanjibhai Modi (supra), has made valuable observations

as to the circumstances where an order passed could be regarded

as a nullity. The relevant observations made in Rafique Bibi (supra)

read thus:

“6. What is ‘void’ has to be clearly understood. A decree

can be said to be without jurisdiction, and hence a nullity,

if the court passing the decree has usurped a jurisdiction

which it did not have; a mere wrong exercise of jurisdiction

does not result in a nullity. The lack of jurisdiction in the

court passing the decree must be patent on its face in

order to enable the executing court to take cognizance

of such a nullity based on want of jurisdiction, else the

normal rule that an executing court cannot go behind the

decree must prevail.

7. Two things must be clearly borne in mind. Firstly, ‘the

court will invalidate an order only if the right remedy is

sought by the right person in the right proceedings and

circumstances. The order may be ‘a nullity’ and ‘void’

but these terms have no absolute sense: their meaning

is relative, depending upon the court’s willingness to

grant relief in any particular situation. If this principle of

illegal relativity is borne in mind, the law can be made

to operate justly and reasonably in cases where the

doctrine of ultra vires, rigidly applied, would produce

unacceptable results.” (Administrative Law, Wade and

Forsyth, 8th Edn., 2000, p. 308.) …

16 (2004) 1 SCC 287

542 [2024] 1 S.C.R.

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8. A distinction exists between a decree passed by a

court having no jurisdiction and consequently being a

nullity and not executable and a decree of the court

which is merely illegal or not passed in accordance with

the procedure laid down by law. A decree suffering from

illegality or irregularity of procedure, cannot be termed

inexecutable by the executing court; the remedy of a

person aggrieved by such a decree is to have it set

aside in a duly constituted legal proceedings or by a

superior court failing which he must obey the command

of the decree. A decree passed by a court of competent

jurisdiction cannot be denuded of its efficacy by any

collateral attack or in incidental proceedings.”

(underlining ours, for emphasis)

37. Also, a reading of Rafique Bibi (supra) makes it clear that the lack

of jurisdiction must be patent on the face of the decree to enable an

executing court to conclude that the decree was a nullity. Hence, it

is clear that all irregular or wrong decrees would not necessarily be

void. An erroneous or illegal decision, which was not void, could not

be objected in execution or incidental proceedings. This dictum was

also affirmed by a Bench of 3 (three) Hon’ble Judges of this Court

in Balvant N. Viswamitra v. Yadav Sadashiv Mule17.

38. What follows from a conspectus of all the aforesaid decisions is

that jurisdiction is the entitlement of the civil court to embark upon

an enquiry as to whether the cause has been brought before it by

the plaintiff in a manner prescribed by law and also whether a good

case for grant of relief claimed been set up by him. As and when

such entitlement is established, any subsequent error till delivery of

judgment could be regarded as an error within the jurisdiction. The

enquiry as to whether the civil court is entitled to entertain and try a

suit has to be made by it keeping in mind the provision in section 9,

CPC and the relevant enactment which, according to the objector,

bars a suit. Needless to observe, the question of jurisdiction has to

be determined at the commencement and not at the conclusion of

the enquiry.

17 (2004) 8 SCC 706

[2024] 1 S.C.R. 543

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

39. Although not directly arising in the present case, we also wish to

observe that the question of jurisdiction would assume importance

even at the stage a court considers the question of grant of interim

relief. Where interim relief is claimed in a suit before a civil court and

the party to be affected by grant of such relief, or any other party to

the suit, raises a point of maintainability thereof or that it is barred

by law and also contends on that basis that interim relief should

not to be granted, grant of relief in whatever form, if at all, ought to

be preceded by formation and recording of at least a prima facie

satisfaction that the suit is maintainable or that it is not barred by

law. Such a satisfaction resting on appreciation of the averments in

the plaint, the application for interim relief and the written objection

thereto, as well as the relevant law that is cited in support of the

objection, would be a part of the court’s reasoning of a prima facie case

having been set up for interim relief, that the balance of convenience

is in favour of the grant and non-grant would cause irreparable harm

and prejudice. It would be inappropriate for a court to abstain from

recording its prima facie satisfaction on the question of maintainability,

yet, proceed to grant protection pro tem on the assumption that the

question of maintainability has to be decided as a preliminary issue

under Rule 2 of Order XIV, CPC. That could amount to an improper

exercise of power. If the court is of the opinion at the stage of hearing

the application for interim relief that the suit is barred by law or is

otherwise not maintainable, it cannot dismiss it without framing a

preliminary issue after the written statement is filed but can most

certainly assign such opinion for refusing interim relief. However, if

an extraordinary situation arises where it could take time to decide

the point of maintainability of the suit and non-grant of protection pro

tem pending such decision could lead to irreversible consequences,

the court may proceed to make an appropriate order in the manner

indicated above justifying the course of action it adopts. In other

words, such an order may be passed, if at all required, to avoid

irreparable harm or injury or undue hardship to the party claiming

the relief and/or to ensure that the proceedings are not rendered

infructuous by reason of non-interference by the court.

40. Turning to the facts of the present case, 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 

544 [2024] 1 S.C.R.

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of UPZA & LR Act as well as it was barred under section 41(h) of the

Specific Relief Act and, thus, not maintainable before the civil court.

What was required of the Trial Court in such situation was to 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. A glance at the order dated 5th August, 1991, is

sufficient to inform us that the Trial Court, in no words whatsoever,

made any decision on whether it was entitled in law to decide the plea

before it, prior to decreeing the Suit against Samiullah under Rule

10 of Order VIII, CPC. The question of competence to try the Suit,

we have found, was the first of several issues arising for decision in

the Suit and despite such looming presence of an important issue

before the Trial Court which, if examined and answered in favour of

Kazmi, would have ousted jurisdiction, it preferred not to wait and

proceeded to decree the same against Samiullah without a whisper

on its competency to do the same.

41. The legal and factual position of the present case having been noted

above, we hold 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 5th August, 1991 is held to be ab initio void and the

decree drawn up based thereon is inexecutable.

42. There is one other reason which we wish to assign as a ground

for upholding the order of the Executing Court and the High Court.

43. Reference may once again be made to Balram Taneja (supra) where

the law has been reiterated succinctly, as follows:

“41. There is yet another infirmity in the case which relates

to the ‘judgment’ passed by the Single Judge and upheld

by the Division Bench.

42. ‘Judgment’ as defined in Section 2(9) of the Code of

Civil Procedure means the statement given by the Judge

of the grounds for a decree or order. What a judgment

should contain is indicated in Order 20 Rule 4(2) which

says that a judgment ‘shall contain a concise statement 

[2024] 1 S.C.R. 545

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

of the case, the points for determination, the decision

thereon, and the reasons for such decision’. It should be

a self-contained document from which it should appear

as to what were the facts of the case and what was the

controversy which was tried to be settled by the court and

in what manner. The process of reasoning by which the

court came to the ultimate conclusion and decreed the

suit should be reflected clearly in the judgment.

43. ***

44. ***

45. Learned counsel for Respondent 1 contended that

the provisions of Order 20 Rule 4(2) would apply only to

contested cases as it is only in those cases that ‘the points

for determination’ as mentioned in this rule will have to be

indicated, and not in a case in which the written statement

has not been filed by the defendants and the facts set

out in the plaint are deemed to have been admitted. We

do not agree. Whether it is a case which is contested by

the defendants by filing a written statement, or a case

which proceeds ex parte and is ultimately decided as an

ex parte case, or is a case in which the written statement

is not filed and the case is decided under Order 8 Rule

10, the court has to write a judgment which must be in

conformity with the provisions of the Code or at least set

out the reasoning by which the controversy is resolved.

46. *** Even if the definition were not contained in Section

2(9) or the contents thereof were not indicated in Order

20 Rule 4(2) CPC, the judgment would still mean the

process of reasoning by which a Judge decides a case

in favour of one party and against the other. In judicial

proceedings, there cannot be arbitrary orders. A Judge

cannot merely say ‘suit decreed’ or ‘suit dismissed’. The

whole process of reasoning has to be set out for deciding

the case one way or the other. This infirmity in the present

judgment is glaring and for that reason also the judgment

cannot be sustained.”

(underlining ours, for emphasis) 

546 [2024] 1 S.C.R.

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We concur with the observation that a judgment, as envisaged in

section 2(9), CPC, should contain the process of reasoning by which

the court arrived at its conclusion to resolve the controversy and

consequently to decree the suit.

44. It is indubitable that a “judgment”, if pronounced by a court under

Rule 10 of Order VIII, CPC, must satisfy the requirements of Rule

4(2) of Order XX, CPC, and thereby conform to its definition provided

in section 2(9) thereof.

45. Further, even a cursory reading of Rule 10 of Order VIII, CPC

impresses upon us the fundamental mandate that a “decree” shall

follow a “judgment” in a case where the court invokes power upon

failure of a defendant to file its written statement. It is, therefore,

only a “judgment” conforming to the provisions of the CPC that

could lead to a “decree” being drawn up. As is manifest on the

face of the record of the present case, apart from the ipse dixit

of the Trial Court that the case is fit for being proceeded against

under Rule 10 of Order VIII and that the suit qua Samiullah ought

to be decreed with the injunctive order, no ingredients that a

“judgment” should contain as per the CPC appear in the order

dated 5th August, 1991.

46. We deem it fit to advert to the fine words of wisdom imparted to

us by Hon’ble P.B. Mukharji, CJ., in ‘The New Jurisprudence: The

Grammar of Modern Law’ where the learned author says:

“The supreme requirement of a good judgment is reason.

Judgment is of value on the strength of its reason. The

weight of a judgment, its binding character or its persuasive

character depends on the presentation and articulation

of reason. Reason, therefore, is the soul and spirit of a

good judgment.”

47. It is one of the cardinal principles of the justice delivery system that

any verdict of a competent judicial forum in the form of a judgment/

order, that determines the rights and liabilities of the parties to the

proceedings, must inform the parties what is the outcome and why

one party has succeeded and not the other - the ‘why’ constituting

the reasons and ‘what’ the conclusion. Apart from anything else, 

[2024] 1 S.C.R. 547

Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

insistence of the requirement for the reason(s) to support the

conclusion guarantees application of mind by the adjudicator to the

materials before it as well as provides an avenue to the unsuccessful

party to test the reasons before a higher court.

48. All civil courts in the country have to regulate their judicial work

in accordance with the terms of the provisions of the CPC. Any

egregious breach or violation of such provisions, including the one

noticed here, would be ultra vires.

49. Let us now examine whether there is a ‘decree’ within the scope of

section 2(2), CPC. Section 2(2) is reproduced hereunder:

(2) “decree” means the formal expression of an adjudication

which, so far as regards the Court expressing it, conclusively

determines the rights of the parties with regard to all or

any of the matters in controversy in the suit and may be

either preliminary or final. It shall be deemed to include the

rejection of a plaint and the determination of any question

within section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal

from an order, or

(b) any order of dismissal for default.

(underlining ours, for emphasis)

50. The decree signed by the Trial Court on 11th November, 1991 is not

on record. Nevertheless, at the cost of repetition, we record that

examination of the order dated 5th August, 1991 does not reveal

any adjudication leading to determination of the rights of the parties

in relation to any of the matters in controversy in the suit and,

therefore, the decree since drawn up is not a formal expression of

an adjudication/determination since there has been no adjudication/

determination so as to conform to the requirements of a decree

within the meaning of section 2(2). In this regard, we express our

concurrence with both the High Court and the Executing Court that

there is no decree at all in the eye of law.

51. We, therefore, hold 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. 

548 [2024] 1 S.C.R.

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Conclusion

52. For the reasons mentioned above, we conclude 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.

53. There is no reason to interfere with the judgment and order of the

High Court under challenge. It is upheld and the appeal, accompanied

by any pending applications, stands dismissed. Parties shall bear

their own costs.

54. It is, however, made clear that no part of the observations of this Court,

or of the High Court or of those below, be treated as an expression of

opinion in any particular matter or on any factual aspect whatsoever.

Determination of the title to the suit property, adjudication on the

validity of the sale deed in favour of the Purchasers, or decision on

any other contentious issue are left open for a forum of competent

jurisdiction to embark upon, if approached by any of the parties.

55. We are aware that pursuant to Interim Application No. 4 of 2013 moved

by the appellants, this Court had appointed one Mr. Suryanarayana

Singh as the Court Receiver in respect of the property (“Court

Receiver”, hereafter) on 14th March, 2014. The Court Receiver already

appointed shall stand discharged forthwith. Unpaid remuneration, if

any, shall be borne by the appellants.

56. However, the Court Receiver shall provide accounts of income

and expenditure in respect of the suit property to the appellants as

well as the respondents 1 to 3 within two months and any claim of

either of the parties would be open to be raised and addressed in

accordance with law.

Headnotes prepared by: Ankit Gyan Result of the case: Appeal dismissed.