Decree — Execution of perpetual/prohibitory injunction — Time-bar — Whether execution application can be filed after long gap (≈40 years) — Held: A decree granting perpetual/prohibitory injunction is not subject to any period of limitation for enforcement; where breach occurs at any time after decree, the decree-holder may seek execution. (Paras 41–44, 136 Limitation Act proviso) — Affirmed. Order XXI, Rule 11-A CPC — Application for arrest to state grounds / affidavit — Mandatory character — Held: Rule 11-A mandates that an application for arrest and detention shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for; the requirement is in conformity with the proviso to Section 51 CPC and is mandatory. However, in appropriate cases where the affidavit is not filed, the court should ordinarily afford the decree-holder an opportunity to file the requisite affidavit. (Paras 32–36, 51–52) Order XXI, Rule 32 CPC — Imprisonment/attachment for disobedience of injunction — Pre-conditions for ordering detention — Held: Before ordering detention under O. XXI R. 32, the executing court must be satisfied (on materials placed before it) that (i) the judgment-debtor was aware of the decree and its binding nature, (ii) had an opportunity to obey the decree, and (iii) wilfully disobeyed it. The onus to place such material lies on the decree-holder; mere allegations or police complaints, without material to satisfy these pre-conditions, are insufficient to justify arrest/detention/attachment. (Paras 48–51, 45–46) Jurisdictional error / Supervisory jurisdiction (Art. 227) — High Court’s duty — Held: A High Court exercising supervisory jurisdiction must examine whether a subordinate court’s order suffers from jurisdictional error (including denial of procedural fairness or absence of evidence to support a penal order). Where severe consequences (arrest, detention, attachment) flow from an order, the High Court should be mindful of ensuring compliance with jurisdictional and procedural requirements and should not confine itself to perfunctory satisfaction. (Paras 53–60) Application to facts — Held: Executing Court allowed execution ex parte and ordered arrest (30 days) and attachment on basis of assertions and some police complaints without adequate material to show that appellants had opportunity to obey and wilfully disobeyed; High Court confined to a one-line affirmation and failed to appreciate jurisdictional infirmity. Both orders are unsustainable and are set aside. It is, however, open to decree-holders to file fresh application; executing court must decide any fresh application strictly in light of these observations. (Paras 51–62) Relief / Directions: Impugned order of the High Court (23.09.2019) and order of the Executing Court (04.09.2019) set aside. Decree-holders permitted to file fresh execution application if warranted; executing court to consider afresh keeping in view the observations in this judgment. Registry to circulate copy of this judgment to all High Courts for circulation to District Courts. Appeal allowed. (Paras 60–64)

Decree — Execution of perpetual/prohibitory injunction — Time-bar — Whether execution application can be filed after long gap (≈40 years) — Held: A decree granting perpetual/prohibitory injunction is not subject to any period of limitation for enforcement; where breach occurs at any time after decree, the decree-holder may seek execution. (Paras 41–44, 136 Limitation Act proviso) — Affirmed.

Order XXI, Rule 11-A CPC — Application for arrest to state grounds / affidavit — Mandatory character — Held: Rule 11-A mandates that an application for arrest and detention shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for; the requirement is in conformity with the proviso to Section 51 CPC and is mandatory. However, in appropriate cases where the affidavit is not filed, the court should ordinarily afford the decree-holder an opportunity to file the requisite affidavit. (Paras 32–36, 51–52)

Order XXI, Rule 32 CPC — Imprisonment/attachment for disobedience of injunction — Pre-conditions for ordering detention — Held: Before ordering detention under O. XXI R. 32, the executing court must be satisfied (on materials placed before it) that (i) the judgment-debtor was aware of the decree and its binding nature, (ii) had an opportunity to obey the decree, and (iii) wilfully disobeyed it. The onus to place such material lies on the decree-holder; mere allegations or police complaints, without material to satisfy these pre-conditions, are insufficient to justify arrest/detention/attachment. (Paras 48–51, 45–46)

Jurisdictional error / Supervisory jurisdiction (Art. 227) — High Court’s duty — Held: A High Court exercising supervisory jurisdiction must examine whether a subordinate court’s order suffers from jurisdictional error (including denial of procedural fairness or absence of evidence to support a penal order). Where severe consequences (arrest, detention, attachment) flow from an order, the High Court should be mindful of ensuring compliance with jurisdictional and procedural requirements and should not confine itself to perfunctory satisfaction. (Paras 53–60)

Application to facts — Held: Executing Court allowed execution ex parte and ordered arrest (30 days) and attachment on basis of assertions and some police complaints without adequate material to show that appellants had opportunity to obey and wilfully disobeyed; High Court confined to a one-line affirmation and failed to appreciate jurisdictional infirmity. Both orders are unsustainable and are set aside. It is, however, open to decree-holders to file fresh application; executing court must decide any fresh application strictly in light of these observations. (Paras 51–62)

Relief / Directions: Impugned order of the High Court (23.09.2019) and order of the Executing Court (04.09.2019) set aside. Decree-holders permitted to file fresh execution application if warranted; executing court to consider afresh keeping in view the observations in this judgment. Registry to circulate copy of this judgment to all High Courts for circulation to District Courts. Appeal allowed. (Paras 60–64)

2025 INSC 175 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2248 OF 2025

(@ Special Leave to Appeal (C) No.21328 of 2023)

BHUDEV MALLICK ALIAS BHUDEB MALLICK & ANR. Appellant(s)

 VERSUS

RANAJIT GHOSHAL & ORS. Respondent(s)

O R D E R

1. Heard the learned counsel appearing for the parties.

2. Exemption Application is allowed.

3. Leave granted.

4. This appeal arises from the order passed by the High Court

of Judicature at Calcutta dated 23.09.2019 in CO. No. 3283 of

2019 by which the High Court rejected the CO filed by the

appellants herein (judgment debtors) and thereby affirmed the

order passed by the Executing Court dated 4.9.2019 in Title

Execution Case No. 1 of 2017 arising out of Title Suit No. 25 of

1965.

5. For the sake of convenience, the appellants herein shall be

referred to as the judgment debtors and the respondents herein

shall be referred to as the decree holders.

6. The facts giving rise to this appeal may be summarised as

under:

i. In 1965, the predecessor-in-interest of the decree

holders herein instituted a Title Suit No. 25 of 1965 for

confirmation of possession and in the alternative for

1

recovery of possession based on title to the suit land and

for permanent injunction. The respondents herein are the

legal heirs of the original plaintiffs of the Title Suit No.

25 of 1965 referred to above. The Subordinate Judge 2nd

Court, Hooghly decreed the suit vide the judgment and decree

dated 26.06.1976. The operative part of the decree reads

thus:

“Considering the facts, circumstances and evidence on

record I, therefore, hold that the plaintiff has been

able to establish his title to the suit properties

and possession follows title and the defendant has

failed to prove his alleged title. So he had no

occasion to disturb plaintiffs possession of the suit

properties. The plaintiff is therefore, entitled to

have a declaration of title and confirmation of

possession and injunction with respect to peaceful

possession of the suit properties against the

defendants. The suit is also maintainable, issue

nos.2 to 5 are thus disposed of with a remarks that

there is no need for consideration of alternative

prayer for recovery of possession in the aforesaid

context.

Issue No.6:-

In the result the suit succeeds.

Court fees paid upon the plaint sufficient.

Hence,

 ORDERED

That the suit is decreed on contest with costs

against defendant no. 1 Ka to Jha and 2 and without

contest and without cost against the rest.

Plaintiff's title with respect to Ka and Kha schedule

is hereby declared and his possession thereof is

hereby confirmed. The defendants are permanently

restrained from disturbing possession of the

plaintiff of the suit properties. The prayer for

damage etc. is rejected under the present frame of

the suit.”

ii. Thus, the appellants herein were permanently restrained

from disturbing the peaceful possession of the respondents

herein in so far as the suit property is concerned.

2

iii. The appellants herein being dissatisfied with the

judgment and decree dated 20.06.1976 referred to above,

challenged the same by filing Title Appeal No. 214 of 1976.

The record does not reveal in what manner the Title Appeal

came to be disposed of, however, according to the appellants,

the same was disposed of by the Appellate Court vide order

dated 10.06.1980.

iv. Sometime in the year 2017, i.e., after a period of

almost 40 years, the respondents herein filed an Execution

Case seeking to execute the decree dated 26.06.1976 referred

to above on the ground that the appellants herein were

disturbing & creating trouble in their peaceful enjoyment of

the property and thereby alleged that the appellants have

committed breach of the decree of permanent injunction. The

same came to be registered as Title Execution Case No. 1 of

2017. The appellants were served with the summons of the suit

execution case.

v. The application filed by the respondents herein (decree

holders) which came to be registered as Execution Case No. 1

of 2017 concerning title Suit No. 25/1965 reads thus:

“IN THE COURT OF THE LD. CIVIL JUDGE SENIOR DIVISON

AT ARAMBAGH, HOOGHLY

Executive Case No. 2017 concerning Title Suit No.

25/1965

Heirs of Late Choto Chandi Charan Ghosal and heirs of

the said property 1 : Shri Ajit Kumar Ghoshal 2: Sri

Ranjit Ghoshal father of 1 and 2 Late Choto Chandi

Charan Ghoshal 3: Anup Kumar Ghoshal son of Shri

Swapan Ghoshal 4: Sri Arup Kumar Ghoshal 5: Sri Guru

Charan Ghoshal father of 4 & 5 Sri Dilip Kumar

Ghoshal 6: Sri Rabindra Nath Ghoshal son of Shri Asit

3

Kurriar Ghoshal all residents of Harihar Post

Debkhand PS Goghat District Hooghly 1/ Jaidev Mallick

2/ Mahadev Mallick 3/ Bhoot Mallick aka Bhudev

Mallick aka Sahadev Mallick 4/ Laxman Chandra Mallick

all S/o Late Nagendranath Mallick all resident of

Harlhar, Post Debkhand PS Goghat, District Hooghly.

26/06/1976 AD

Civil Appeal No. 214/1976

Settlement 10/06/1980

-no-

-no-

-no-

-no1/Shri Jaydev Mallick 2/ Mahadev Mallick 3(Bhoot

Mallick aka Bhudev Mallick aka Sahadev Mallick 4/

Laxman Chandra Mallick all S/o Nagendranath Mallick

all resident of Harihar, Post Debkhand PS Go ghat,

District Hooghly.

The defendants/debtors wilfully defying the Permanent

Restraining order of the Court and creating obstacles

to the peaceful possession of the plaintiff decree

holder's property by the heirs of the plaintiff

decree holder. Therefore, the instant petition is

being field with the prayer that the

Defendants/Debtors must be stopped from creating

obstacles to the peaceful possession of the property

by the heirs of the decree holders and the

order/direction may also kindly be issued for sending

the Defendants/Debtors to Civil Jail and their

property should also be attached and auctioned so

that the debtors cannot create obstacles on

possession of the property of plaintiff 'decree

holder's heirs by breaking the perpetual restraining

order of the trial court and court assistance is

required to attack and auction their property and to

send them to Civil Jail.”

vi. It is the case of the appellants that although the

summons was received by them yet due to non-availability of

old records they were not in a position to appear before the

court concerned and later learned that the execution case was

fixed by the court for ex parte disposal. On 12.12.2018, the

appellants herein filed their written objections to the

execution case along with a petition requesting to accept the

4

written objections & give them an opportunity of hearing.

vii. The written objections lodged in writing by the

appellant herein (judgment debtors) read thus:

“Objection against Application for Execution filed by

the Decree Holders

1. That the application for Execution flied by the

Decree Holders with respect to the original suit Is

not maintainable.

2. That the application Is vague and Indistinct. The

decree holders in their petition has not stated the

schedule of property and hence It 1s ambiguous and

since the petition Is handwritten it 1s 1lleglble to

a huge extent and should be rejected.

3. That the properties described in the schedule of

the plaint of the original suit was purchased by the

predecessor of the Judgement debtors and at no point

of time was possessed by the decree holders or their

predecessors. The decree holders have obtained the

judgement and decree on 26.06.1976 but even then they

did not possess the suit property. The properties

were all along in possession of the judgement debtors

which was unaffected and even after procuring the

alleged decree from the Ld. Lower Court the decree

holders did not possess the same till today. Thus

after such a long time the decree holders could not

pray for relief for alleged violation of any order of

injunction.

4. That after obtaining the alleged judgement and

decree on 26.06.1976 the decree holders have filed

several cases before the Ld. Executive Magistrate and

In almost every case the possession of the Judgement

debtors have been confirmed.

5. That the decree holders in order to snatch

possession of the suit properties from the judgement

debtors have filed the instant petition at this

belated stage knowing very well that they never

possessed the property. Moreover the decree holders

in several applications have stated that they did not

have possession over the suit properties.

6. That unless the truth regarding the possession

comes before the Ld. Court the Instant execution Is

not maintainable.

5

7. That the decree holders are putting forth claim on

the basis of erroneous record of rights whereas the

judgement debtors have come to own the suit

properties by virtue of purchase. The judgement

debtors have much better title than the decree

holders which can be ascertained by seeking evidence.

8. That since the, decree holders did not clalh1

possession over the suit properties the judgement

debtors have been openly, as of their own right,

uninterruptedly, without any protest from the decree

holders have been possessing the suit tank since

purchase and later on since 10.06.1980 i.e. from the

date of disposal of the appeal case. The decree

holders are thus stopped from putting forth illegal

claim over the suit properties. Without taking due

process of law the Ld. Court and in absence of due

proceeding the Ld. Court could not pass any order in

this case.

9. That the Judgement debtors. will be put to

Irreparable loss and injury if the execution

application filed by the decree holders Is

entertained.

10. That since the petition is illegible and since

the order in the original suit has been passed more

than 40 years ago the judgement debtors crave leave

to file additional written objection if found

necessary for proper adjudication of this case.

In the above circumstances the judgement debtor

pray that the Ld. Court be kind enough to reject

the execution application flied oy the decree

holder.

AFFIDAVIT

I Shri Bhudeb Mallik, s/o Late Nagendranath Mallik,

aged about 55 years, by faith Hindu, by occupation

cultivation, residing at viii-Harihar, p.o. -

Debkhanda, p.s. - Goghat, dist - Hooghly do hereby

solemnly affirm and declare that the statements made

by me above are true to the best of my knowledge and

belief.”

viii. On 21.01.2019, the Executing Court declined to take the

written objections on record saying that the same were not

maintainable. The court fixed the matter for final arguments

6

on 25.01.2019. The appellants being aggrieved by the order

dated 21.09.2019 referred to above, preferred a Revision

Application being C.O. No. 1120 of 2019 before the High

Court. The High Court vide order dated 27.03.2019 admitted

the Revision Application and stayed all further proceedings

of the Title Execution Case No. 1 of 2017.

ix. Later the appellants herein filed an application being

CAN 74 of 2019 dated 26.07.2019 in the High Court seeking

extension of the interim order dated 27.03.2019 referred to

above and accordingly informed the trial court about the

pendency of the Revision Application being C.O. No. 1120 of

2019 and the Application being CAN 74 of 2019 filed for

extension of the interim order dated 27.03.2019.

x. However, on 4.09.2019, the Civil Judge Arambagh proceeded

to pass an Order 21 in Title Execution Case against

appellants herein by allowing the execution case ex parte.

The Civil Judge ordered that the appellants herein (judgment

debtors) shall be arrested and detained in civil prison for a

period of 30 days and their property be attached in

accordance with law.

xi. The order passed by the Civil Judge referred to above

reads thus:

“Order No.21 dated 04.09.2019

The plaintiffs file hazira.

The fact of the case in short is that this is a

case for execution of permanent injunction passed by

the Ld. Second Court of the Subordinate Judge,

Hooghly, in T.S. No.25 of 1965. The plaintiffs of the

original suit got the decree of permanent injunction

in the form of permanent restrainment of the

7

defendant/judgment debtors from disturbing possession

of the plaintiffs in the suit property as well as the

property over which the execution is prayed for.

The present petitioners are the legal heirs of the

deceased Chota Chandicharan Ghoshal i.e. the original

plaintiff of the said T.S. 25 of 1965.

The present execution case, prays in made by

execution application dated 25.11.2017, praying for

execution of contested judgment and decree in T.S.

no.25/1965, dated 26.06.1976, of the Ld. Second Court

of the. Subordinate Judge, Hoogly. It is averred in

the application that the Jdrs. are willfully, in

violation of the decree, disturbing the peaceful

possession of the Dhrs upon decretal property and

thus it is necessary to execute the same by relief of

Civil Jail as well as attachment and sale of the

properties of Jdrs.

In argument Ld. Counsel for the Dhr Submits that

they were granted a contested decree of declaration

and permanent injunction, but the Jdrs are willfully

violating the same, and which is apparent from the

evidence on record and thus the decree maybe put into

execution by putting the Jdrs in Civil Jail and by

attachment of their properties. In this regard, the

Ld. Counsel cited the landmark judgment passed by Ld.

Punjab Haryana High court on 9th October, 1979 and

which is published in AIR 1980 P and H. The impugned

decree filed along with the execution application

shows that the present applicants are Dhrs and that

the defendants of the suit are Jdrs. The same was

decreed on contest on 26.06.1965 declaring the title

of the plaintiff/Dhrs in respect of the suit property

and confirming their possession. The defendants/Jdrs

were restrained by way of permanent injunction from

disturbing possession of the plaintiff m the suit

property.

It is noted that the Jdrs had appeared in such case

and have knowledge of all averments reports.

Moreover, the decree was contested decree. The police

report shows that despite the decree, the Jdrs are

claiming forceful possession. In Iyyam Perumal Vs

Chinna Gounder, (1984) it was observed that direction

of arrest may be restored to if there is adequate

proof of refusal to comply with a decree inspite of

Jdrs possessing sufficient means to satisfy the same.

Thus, there are enough circumstances to put the

decree into execution as prayed for. Hence, it is,

 ORDER

8

That the execution case is allowed ex-parte and the

Judgment Debtors are directed to be arrested and

detained in civil prison for a period of thirty days

and also to attach judgment Debtors properties as per

the provision of law.

Thus this T.Ex.Case is disposed of.”

xii. The appellants herein being dissatisfied with the order

passed by the Civil Judge referred to above, challenged the

same by filing Revision Application No. COC 283 of 2019

before the High Court invoking its supervisory jurisdiction

under Article 227 of the Constitution.

xiii. The High Court vide its impugned order dated 23.09.2019

rejected the revision application and thereby affirmed the

order passed by the Civil Judge referred to above.

xiv. The High Court in its impugned order observed thus:

“The present challenge is directed at the behest of

the judgment-debtors of a decree for permanent

injunction.

Learned counsel appearing for the petitioners argues

that in view of the application filed for arrest and

detention in civil prison of the petitioners, the

same ought to have been - governed under Order XXI

Rule 11A of the Code of Civil Procedure, which, it is

argued, contemplates an affidavit being filed,

stating the ground on which arrest is applied for. In

the absence of such an affidavit in the present case,

the executing court acted without jurisdiction in

allowing the execution case.

The next contention of learned counsel for the

petitioners is that the petitioners' written

objection to the application for execution was not

accepted due to delay, which was challenged in a

civil revisional application before this Court.

Although the petitioners prayed for stay of the

execution case in view of pendency of an application

for extension of stay granted in the previous

revisional application, the executing court acted in

hot haste in passing the impugned order, which was

9

thus vitiated on such ground as well.

Learned counsel appearing for the decree-Holders, on

the other hand, points out that the previous

revisional application challenging the non-acceptance

of written objection by the present petitioners was

dismissed by a co-ordinate bench on the ground that

the same had become infructuous in view of passing of

the order impugned herein. As such, there is no

challenge existing at present to the order refusing

to accept the written objection of the petitioner.

In such view of the matter, the argument, that the

petitioner did not get any opportunity to file

written 'objection, has been rendered academic since

there is no existing challenge pending against the

same.

Moreover, a plain reading of Rule 11A of Order XXI of

the Code suggests that the same envisages an

application being made for the arrest and detention

in prison of the judgment-debtors, stating the

grounds on which arrest is applied for, or be

accompanied by an affidavit stating such grounds.

The language of Order XXI Rule 11A of the Code

suggests clearly that the grounds for arrest and

detention may be contained either in the application

or in the accompanying affidavit.

In the present case, the execution application itself

contained the ground, sufficient to entitle the

executing court to pass an order of execution of the·

decree for permanent injunction.

As such, no jurisdictional error was committed by the

executing court in passing the impugned order.

Accordingly, C.O. No. 3283 of 2019 is dismissed on

contest.

There will be no order as to costs.

At this juncture, learned counsel for the petitioners

prays for stay of the instant order for a limited

period.

However, since, in the opinion of this Court, no

question of law of substantial importance is involved

in this case, the prayer for such stay is refused.”

7. In such circumstances referred to above, the appellants

10

herein (judgment debtors) are here before this Court with the

present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANTS(JUDGMENT DEBTORS)

8. Mr. Joydeep Mukherjee, the learned counsel appearing for the

appellants vehemently submitted that the High Court committed an

egregious error in passing the impugned order. He submitted that

the execution petition itself was not maintainable at the

instance of the respondents after a lapse of almost 40 years

from the date of passing of the decree of declaration and

permanent injunction.

9. He submitted that the Civil Judge committed a serious error

in directing arrest of the appellants herein and their detention

in civil prison for a period of 30 days with further order to

attach their property.

10. The main bone of contention canvassed on behalf of the

appellants herein is that the respondents had not filed any

petition along with an affidavit as the same is a mandatory

requirement under Order XXI Rule 11-A of the Code of Civil

Procedure, 1908 (for short, “the Code”).

11. He further submitted that the aforesaid aspect came to be

overlooked even by the High Court while rejecting the revision

application.

12. The learned counsel in the last submitted that the High

Court should have at least permitted the appellants herein to

file their written objections to the execution case.

13. In such circumstances referred to above, the learned counsel

prayed that there being merit in his appeal the same may be

11

allowed and the impugned order passed by the High Court and also

the one passed by the civil court in execution case be set

aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS (DECREE HOLDERS)

14. On the other hand, Mrs. Lalita Kaushik, the learned counsel

appearing for the respondents vehemently submitted that no error

not to speak of any error of law could be said to have been

committed by the High Court in passing the impugned order.

15. The learned counsel would submit that the contention on

behalf of the appellants that the execution petition could not

have been filed after 40 years from the date of the original

decree is without any merit. She would submit that once there is

a decree of permanent injunction having attained finality; if

thereafter at any point of time, the possession of the decree

holders is sought to be disturbed then in such circumstances it

is always open for the decree holder to seek appropriate relief

from the court in accordance with law.

16. In such circumstances referred to above, the learned counsel

prayed that there being no merit in this appeal, the same may be

dismissed.

ANALYSIS

17. Having heard the learned counsel appearing for the parties

and having gone through the materials on record the only

question that falls for our consideration is whether the High

Court committed any error in passing the impugned order.

18. Before adverting to the rival contentions raised on either

side, it is necessary for us to look into few relevant

12

provisions of the Code.

19. Section 51 of the Code prescribes the powers of the court to

enforce execution. Section 51 of the Code reads thus:-

“51. Powers of Court to enforce execution.—Subject

to such conditions and limitations as may be

prescribed, the Court may, on the application of

the decree-holder, order execution of the decree—

(a) by delivery of any property specifically

decreed;

(b) by attachment and sale or by the sale without

attachment of any property;

(c) by arrest and detention in prison for such

period not exceeding the period specified in

section 58, where arrest and detention is

permissible under that section;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the

relief granted may require:

Provided that, where the decree is for the payment

of money, execution by detention in prison shall

not be ordered unless, after giving the judgmentdebtor an opportunity of showing cause why he

should not be committed to prison, the Court, for

reasons recorded in writing, is satisfied—

(a) that the judgment-debtor, with the object or

effect of obstructing or delaying the execution of

the decree,—

(i) is likely to abscond or leave the local limits

of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in

which the decree was passed, dishonestly

transferred, concealed, or removed any part of

his property, or committed any other act of

bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since

the date of the decree, the means to pay the

amount of the decree or some substantial part

thereof and refuses or neglects or has refused or

neglected to pay the same, or

(c) that the decree is for a sum for which the

judgment-debtor was bound in a fiduciary capacity

to account.

Explanation.—In the calculation of the means of

13

the judgment-debtor for the purposes of clause

(b), there shall be left out of account any

property which, by or under any law or custom

having the force of law for the time being in

force, is exempt from attachment in execution of

the decree.”

20. There is no substantial change in the above quoted Section

by the Amendment Act of 1976 except addition of words “for such

period not exceeding the period specified in Section 58 where

arrest and detention is permissible under that section” in

Clause (c). In the unamended Section, there was no provision as

to the period for which a debtor may be detained in a civil

prison. That lacuna is now removed by the addition of this

clause. The addition seeks to make the provision harmonious with

Section 58.

21. Calcutta High Court Amendment : In clause (b) omit the

words, “or by sale without attachment” between the words “sale”

and “of any”. In the proviso, omit the words “for reasons

recorded in writing” after the words “the Court” and before the

words “is satisfied”. Also, add the proviso–

“Provided also that the Court of Small Causes of

Calcutta shall have no power to order execution of a

decree by attachment and sale of immovable property

or by appointing a receiver in respect of such

property.”

22. Section 51 defines the jurisdiction and power of the court

to enforce execution. The manner of execution of a decree is

laid down in the First Schedule. The Section enumerates in

general terms various modes by which the court may order

execution of a decree according to the nature of relief granted

in favour of a decree-holder.

23. After the decree-holder files an application for execution

14

of a decree, the executing court can enforce execution. A decree

may be enforced by delivery of any property specified in the

decree, by attachment and sale or by sale without attachment of

any property, or by arrest and detention in a civil prison of

the judgment-debtor or by appointing a Receiver, or by effecting

partition, or in such other manner as the nature of the relief

may require.

24. Sections 51 and 58 respectively should be read together.

Section 51 defines the power and jurisdiction of the executing

court to enforce execution, Section 58 fixes the period for

which the judgment-debtor can be detained in a civil prison.

25. Order XXI Rule 32 of the Code reads thus:-

“32. Decree for specific performance for

restitution of conjugal rights, or for an

injunction.— (1) Where the party against whom a

decree for the specific performance of a contract,

or for restitution of conjugal rights, or for an

injunction, has been passed, has had an

opportunity of obeying the decree and has wilfully

failed to obey it, the decree may be enforced 1

[in the case of a decree for restitution of

conjugal rights by the attachment of his property

or, in the case of a decree for the specific

performance of a contract or for an injunction] by

his detention in the civil prison, or by the

attachment of his property, or by both.

(2) Where the party against whom a decree for

specific performance or for an injunction has been

passed is a corporation, the decree may be

enforced by the attachment of the property of the

corporation or, with the leave of the Court, by

the detention in the civil prison of the directors

or other principal officers thereof, or by both

attachment and detention.

(3) Where any attachment under sub-rule (1) or

sub-rule (2) has remained in force for 2 [six

months,] if the judgment-debtor has not obeyed the

decree and the decree-holder has applied to have

the attached property sold, such property may be

15

sold; and out of the proceeds the Court may award

to the decree holder such compensation as it

thinks fit, and shall pay the balance (if any) to

the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the

decree and paid all costs of executing the same

which he is bound to pay, or where, at the end of

2 [six months] from the date of the attachment no

application to have the property sold has been

made, or if made has been refused, the attachment

shall cease.

(5) Where a decree for the specific performance of

a contract or for an injunction has not been

obeyed, the Court may, in lieu of or in addition

to all or any of the processes aforesaid, direct

that the act required to be done may be done so

far as practicable by the decree-holder or some

other person appointed by the Court, at the cost

of the judgment-debtor, and upon the act being

done the expenses incurred may be ascertained in

such manner as the Court may direct and may be

recovered as if they were included in the decree.”

26. Sub-rule (1) of Rule 32 states that where a decree is for

specific performance of a contract, or for an injunction, and

the judgment-debtor wilfully disobeys such decree, it may be

executed by attachment of property of the judgment-debtor or by

his detention, or by both.

27. Sub-rule (2) declares that where in a decree for specific

performance or for injunction, the judgment-debtor is a

corporation, it may be enforced by attachment of the property of

the corporation, or with the leave of the court by detention of

the directors or other principal officers or by both, attachment

and detention.

28. Sub-rule (3) provides for sale of attached property and

payment of the sale-proceeds to the decree-holder where the

attachment remains in force for six months and the judgment16

debtor fails to obey the decree.

29. Sub-rule (4) deals with cases where the judgment-debtor

obeys the decree or the decree-holder commits default.

30. Sub-rule (5) empowers the executing court to take

appropriate action for enforcing the decree at the cost of the

judgment-debtor who wilfully disobeys such decree.

31. The Explanation clarifies that the expression “the act

required to be done” covers prohibitory as also mandatory

injunctions.

32. Order XXI Rule 11-A of the Code reads thus:-

“11-A. Application for arrest to state grounds.—

Where an application is made for the arrest and

detention in prison of the judgment-debtor, it shall

state, or be accompanied by an affidavit stating,

the grounds on which arrest is applied for.”

33. The proviso to Section 51, as inserted by the Code of Civil

Procedure (Amendment) Act, 1936 (Act 21 of 1936) limited the

grounds on which a judgment-debtor could be arrested or

detained.

34. The Law Commission considered the amendment of 1936 and

stated:-

“This is new. Since Section 51, proviso, now

limits the grounds on which a judgment-debtor can be

arrested (after the 1936 amendment), it is desirable

to provide that the application under Order XXI,

Rule 11 should state the grounds on which arrest is

sought for. This will assist the court in taking

action under Order XXI, Rule 37 (notice to show

cause), and also further proceedings under Order

XXI, Rule 40. It has been held that the existence of

the circumstances mentioned in Section 51, proviso

(a) to (c) should be alleged either in the execution

application or in an accompanying affidavit. Unless

such a circumstance is alleged (it was pointed out),

17

the court cannot think of the circumstances and, in

its absence, the court cannot take action under XXI,

Rule 37.”

35. Rule 11-A states that where an application is made for the

arrest and detention of the judgment-debtor, it must state or

accompanied by an affidavit - specifying the grounds on which

arrest is sought. Rule 11-A of Order 21 is in conformity with

the substantive provisions of proviso to Section 51 of the Code.

Stating of grounds or filing of affidavit is essential. The

provision is thus mandatory and unless it is complied with, no

arrest or detention of the judgment-debtor can be ordered. But

if the requisite affidavit is not filed by the decree-holder,

the court should afford an opportunity to him to file such

affidavit.

36. It is well settled that a decree of permanent injunction is

executable with the aid of the provisions contained in Order XXI

Rule 32 of the Code referred to above, and any act in violation

or breach of decree of permanent injunction is a continuing

disobedience entailing penal consequences.

37. In Jai Dayal And Others v. Krishan Lal Garg and

Another reported in (1996) 11 SCC 588, this Court considered the

effect of decree of permanent injunction as well as the scope of

provisions of Order 21 Rule 32 of the Code and held as under:-

“6. It is contended that the High Court has proceeded

on the premise that the rights of parties are

required to be adjudicated under Section 22 of the

Easements Act. The view of the High Court is clearly

in error. It is seen that once the decree of

perpetual injunction and mandatory injunction has

become final, the judgment-debtor is required to obey

the decree. In whatever form he obstructs, it is

liable to removal for violation and the natural

18

consequence is the execution proceedings under Order

XXI, Rule 32, CPC which reads as under:

"32.(3) Where any attachment under sub-rule (1) or

sub-rule (2) has remained in force for six months

if the judgment-debtor has not obeyed the decree,

if the decree-holder has applied to have the

attached property sold, such property may be sold;

out of the proceeds the Court may award to the

decree-holder such compensation as it thinks fit,

and shall pay the balance, if any, to the judgmentdebtor on his application.

(4) Where the judgment-debtor has obeyed the decree

and paid all costs of executing the same which he

is bound to pay, or where, at the end of six months

from the date of the attachment, no application to

have the property sold has been made, or if made

has been refused, the attachment shall cease."

7. In this case, since the attachment was made for

enforcement of the perpetual injunction and mandatory

injunction, the decree is required to be complied

with. In case he did not obey the injunction under

Clause (1) of Order 32, the judgment-debtor is liable

to detention in the civil prison and also to proceed

against the property under attachment.”

 (Emphasis supplied)

38. The High Court of Rajasthan in Maga Ram And Another v. Kana

Ram And Others reported in AIR 1993 Rajasthan 208, held as

under :

“3. A perusal of the decree under execution shows

that it was for mandatory as well as for prohibitory

injunction. It stood satisfied so far it concerned

with mandatory part of the injunction by the removal

of the encroachment existing on the disputed land on

the date on which it was passed. The decree in

respect of prohibitory injunction was subsisting even

after the disposal of first and second execution

applications. The third execution application has

been moved for the execution of the decree in respect

of the prohibitory injunction. It is perfectly

executable under O. XXI, R. 32, C.P.C.

4. There is also no substance in the second objection

relating to limitation. Art. 136, Limitation Act,

deals with the limitation for execution of decrees

other than a decree granting mandatory injunction.

The limitation is 12 years from the date the decree

19

becomes enforceable. The decree for prohibitory

injunction become enforceable when the judgementdebtors made fresh encroachment on the disputed

 land. The decree under execution itself was passed on

September 20, 1983. As such the third execution

application was well within limitation.”

 (Emphasis supplied)

39. The High Court of Bombay in the case of Shri Benedito

(Betty) Dias v. Armando Benedita Fernandes reported in

2017(4) AIR Bom. R 381, held as under:-

“12. The decision of the Kerala High Court, in the

case of M.G. Simon (supra), cannot take the case of

the petitioners any further and in fact, would assist

the respondents. In that case also, it has been held

that an application for enforcement of the decree

granting prohibitory injunction shall not be subject

to any period of limitation and where there is a

composite decree, granting mandatory and prohibitory

injunction, one part is subjected to limitation

period of three years, whereas the other is not

 subjected to any period of limitation. The petitioner

can enforce the prohibitory injunction, whenever

violation of that part takes place.

13. In the case of Jai Dayal (supra), the Hon'ble

Supreme Court has held that once the decree of

perpetual and mandatory injunction has become final,

the judgment debtor is required to obey the decree

and a party cannot and should not, by his action be

permitted to drive the decree holder to file a second

 suit. It has been inter-alia held that non-compliance

is a continuing disobedience in respect of which a

separate/fresh suit is barred under Section 47 of the

 CPC. Thus, in my considered view, the contention

based on the execution being barred by limitation,

cannot be accepted.” (Emphasis supplied)

40. The High Court of Punjab and Haryana in the case of

Dilbagh Singh and Others v. Harpal Singh Alias Harpal Singh

Chela and Others reported in 2020 Supreme (P&H) 944, has held as

under:-

“6. Although learned counsel for the petitioners has

laid much stress on the fact that to seek execution

of the decree, qua the restoration of the possession

20

in his favour, the decree holder was supposed to

plead specifically as to when and in what manner he

has been dispossessed. This Court finds this argument

to be noted only to be rejected. The provisions of

sub Rule (5) Rule 32 of Order 21 CPC do not prescribe

any such condition. Rather, Order 21 Rule 32 CPC

prescribes that for execution of a decree if any act

is required to be done by the judgment debtor, the

Executing Court can order that such an act be done by

 the judgment debtor; as claimed. Sub Rule (5) Rule 32

of Order 21 CPC has been interpreted by the Supreme

Court in various judgments viz. "Samee Khan vs. Bindu

Khan, 1998(4) RCR(Civil) 125 (SC)" to mean that in an

execution proceedings of a decree for injunction, if

it is found that the decree holder has been

dispossessed after the date of decree, the

restoration of possession can also be ordered by the

 Executing Court. Hence, it is no more res-integra

that in execution of a decree for injunction, even

restoration of possession can be ordered by the

Executing Court. This view has also been taken by

this court in 'Kapoor Singh vs. Om Parkash, 2009(4)

PLR 178'. Hence, no fault can be found, per-se, with

the action of the Executing Court in issuing warrants

of possession in the execution proceedings.”

 (Emphasis supplied)

41. Having regard to the dictum of law as laid in the aforesaid

decisions, there is no force in the argument of the learned

counsel appearing for the appellants that the execution case

could not have been instituted by the respondents herein after a

period of 40 years from the date of passing of the decree in the

original Title Suit. The decree for permanent injunction can be

enforced or becomes enforceable when the judgment debtor tries

to disturb the peaceful possession of the decree holder or tries

to dispossess the decree holder in some manner or the other or

creates obstruction in the peaceful enjoyment of the property

over which he has a declaration of title from the civil court in

the form of a decree.

21

42. In the aforesaid context, we may refer to Article 136 of the

Limitation Act, 1963 which reads thus:-

136.

For the

execution of

any decree

(other than a

decree granting

a mandatory

injunction) or

order of any

civil court.

Twelve

years.

When the decree or order

becomes enforceable or

where the decree or any

subsequent order directs

any payment of money or

the delivery of any

property to be made at a

certain date of at

recurring periods, when

default in making the

payment or delivery in

respect of which

execution is sought,

takes place:

Provided that an

application for the

enforcement or execution

of a decree granting a

perpetual injunction

shall not be subject to

any period of

limitation.

(Emphasis supplied)

43. The proviso to Section 136 of the Limitation Act referred to

above makes it further clear that for the enforcement or

execution of a decree granting a perpetual injunction shall not

be subject to any period of limitation.

44. Imprisonment of a judgment-debtor is no doubt a drastic step

and would prevent him from moving anywhere he likes, but once it

is proved that he had wilfully and with impunity disobeyed an

order of injunction, the court owes it to itself to make the

judgment-debtor realise that it does not pay to defy a decree of

a court. Failure to exercise this power in appropriate cases

might verily undermine the respect for judicial institutions in

the eyes of litigants. The court’s power under Order 21, Rule 32

22

is no more than a procedural aid to the harried decree-holder.

45. Where the judgment-debtor disobeys a decree of injunction,

he can be dealt with under this rule by his imprisonment or by

attachment of his property or by both. But the court has to

record a finding that the judgment-debtor wilfully disobeyed or

failed to comply with the decree in spite of opportunity

afforded to him. Absence of such finding is a serious infirmity

vitiating the order.

46. Each breach of injunction is independent and actionable in

law making the judgment-debtor answerable. Where there are

successive breaches of decree, the judgment-debtor can be dealt

with on every such breach and the doctrine of res judicata has

no application. The court is expected to take strict view and

stern action. (See : Code of Civil Procedure, 1908 by Justice

C.K. Thakker, 2009 Edn.)

47. However, the point for our consideration in the present

appeal is whether the executing court adopted the correct

procedure before passing the order directing that the appellants

herein be arrested and detained in civil prison for a period of

30 days and that their property be attached.

48. Sub-rule (1) of Rule 32 of 0rder XXI of the Code, in so far

it is material for the present discussion, reads thus:-

“Where the party against whom a

decree ................ for an injunction has been

passed, has had an opportunity of obeying the decree

and has wilfully failed to obey it, the decree may be

enforced .. in the case of a decree .. for an

injunction by his detention in the civil

prison ..................”

49. The sub-rule, as seen from its clear and explicit language,

23

provides that a decree for injunction passed against a party

could be enforced by his detention in a civil prison, if he has

wilfully failed to obey such decree despite having had an

opportunity of obeying it. In other words, the sub-rule, no

doubt, enables a holder of a decree for injunction to seek its

execution from the executing Court by requiring it to order the

detention of the person bound by the decree, in a civil prison.

But, the Court should not, according to the same sub-rule, make

an order for detention of the person unless it is satisfied that

that person has had an Opportunity of obeying the decree and yet

has wilfully disobeyed it.

50. If regard is had to the above scope and ambit of the subrule, it follows that the executing Court required to execute

the decree for injunction against the person bound by that

decree, by ordering his detention, cannot do so without

recording a finding on the basis of the materials to be produced

by the person seeking the execution of the decree that the

person bound by the decree, though has had an opportunity of

obeying the decree, has wilfully failed to obey it, as a

condition precedent. Hence, what is required of the person

seeking execution of the decree for injunction under the subrule is to place materials before the executing Court as would

enable it to conclude (i) that the person bound by the decree,

was fully aware of the terms of the decree and its binding

nature upon him; and (ii) that that person has had an

opportunity of obeying such decree, but has wilfully, i.e.,

consciously and deliberately, disobeyed such decree, so that it

24

can make an order of his detention as sought for. Thus, the onus

of placing materials before the executing Court for enabling it

to record a finding that the person against whom the order of

detention is sought, has had an opportunity of obeying the

decree for injunction, but has wilfully disobeyed it, lies on

the person seeking such order of detention, lest the person

seeking deprivation of the liberty of another cannot do so

without fully satisfying the Court about its need. (See :

Shivamurthy Mahalingappa Kuchanaur v. Dannammadevi Cycle Mart,

Rabakavi, AIR 1987 Karnataka 26).

51. In the instant case, the executing court has proceeded to

make the order of arrest, detention in a civil prison for a

period of 30 days and attachment of property against the

appellants herein when there was absolutely no material placed

by the respondents herein to satisfy it that the appellants have

had an opportunity of obeying the decree for injunction, but

have wilfully disobeyed it. In fact, the order of arrest and

detention made by the executing court is based on a surmise that

the respondents (decree-holders) have levelled allegations that

the appellants herein are interfering with their peaceful

possession of the property in question and in this regard, few

complaints of breaches made to the police were placed before the

executing court.

52. The executing court proceeded merely on the basis of the

assertions made by the respondents that the appellants herein

are trying to interfere with their peaceful possession of the

suit property without any further inquiry into the matter. We do

25

not propose to go into the question whether a separate affidavit

should have been filed by the respondents herein along with the

application preferred before the executing court levelling

allegations of breach of the permanent injunction.

JURISDICTIONAL ERROR

53. We are a bit disappointed with the manner in which the High

Court dealt with the present litigation, more particularly while

deciding the revision application filed by the appellants herein

against the order passed by the executing court. All that the

High Court has said in one line is that it did not find any

jurisdictional error in the order passed by the executing court

ordering arrest, detention in a civil prison and attachment of

the property of the appellants. We fail to understand, why the

High Court was not able to see the gross error in the order

passed by the executing court, be it called an error of law or a

jurisdictional error. Undoubtedly, the High Court in exercise of

its supervisory jurisdiction under Article 227 of the

Constitution must ascertain before interfering with any order

passed by a subordinate court or tribunal whether the same

suffers from any jurisdictional error. At times in litigation

like the one on hand, the court should be guided by its

conscience, more particularly keeping in mind the peculiar facts

and circumstances of the case and not strictly go by the term

“jurisdictional error”. It is very easy for the High Court to

say that there is no jurisdictional error and, therefore, no

interference is warranted but before saying so, the High Court

should be mindful of the consequences that would follow like

26

arrest, detention in civil prison and attachment of property.

54. What is a jurisdictional error has been the subject of a

legion of illuminating judicial decisions. In this case,

however, we need concern ourselves with only one aspect of that

matter and it is enough for us to refer in this connection to

the decision of the Privy Council in the case of Joy Chand Lal

Babu v. Kamalaksha Chaudhury, AIR 1949 PC 239, where Sir John

Beaumont, delivering the judgment of the Board, observed inter

alia as follows:-

“although error in a decision of a Subordinate Court

does not by itself involve that the subordinate Court

has acted illegally or with material irregularity so

as to justify interference in revision under

Subsection (c). nevertheless if the erroneous decision

results in the subordinate Court exercising a

jurisdiction, not vested in it by law or failing to

exercise a jurisdiction so vested, a case for revision

arises under Sub-section (a) or Sub-section (b) and

Sub section (c) can be ignored.”

55. If, therefore, an error, be it an error of fact or of law,

is such that the erroneous decision has resulted in the

subordinate Court or tribunal exercising jurisdiction, not

vested in it by law, or in its having failed to exercise

jurisdiction, vested in it by law, that will come within the

scope of Section 115 of the Code or, for the matter of that,

of Article 227 of the Constitution, as the case may be. This

error may have resulted from a violation of rules of natural

justice, by taking into consideration matters which are

extraneous and irrelevant, or by substituting judicial

consideration by bias, based on suspicion, arising from those

extraneous matters or from any other cause whatsoever but if it

27

has affected the assumption or exercise of jurisdiction, as

envisaged above, it will be a jurisdictional error for purposes

of the above Article.

56. There is no exhaustive list of jurisdictional errors, but

case law has identified such an error exists when a decisionmaker has:

 identified a wrong issue;

 asked a wrong question;

 ignored relevant material;

 relied on irrelevant material;

 failed to observe a requirement of procedural

fairness;

 made a decision involving fraud;

 made a decision in bad faith;

 made a decision without evidence;

 applied a policy inflexibly.

57. The concept of jurisdiction has been drastically expanded

after the decision of the House of Lords in Anisminic v. The

Foreign Compensation Commission, 1967(2) AER 986. Now, every

error of law is a jurisdictional error. If a decisive fact is

wrongly understood, even then, the decision will be outside

jurisdiction. This concept is best explained by K.S.

Paripoornan, J., in His Lordship's separate Judgment in Mafatal

Industries Ltd. v. Union of India, (1997) 5 SCC 536. The

relevant portion of the said judgment reads as follows:-

“334. Opinions may differ as to when it can be said

that in the “public law” domain, the entire

proceeding before the appropriate authority

is illegal and without jurisdiction or the defect or

infirmity in the order goes to the root of the

matter and makes it in law invalid or void (referred

to in Illuri Subbayya Chetty case [(1964) 1 SCR 752 :

AIR 1964 SC 322 : (1963) 14 STC 680 : (1963) 50 ITR

93] and approved in Dhulabhai case [(1968) 3 SCR

662 : AIR 1969 SC 78 : (1968) 22 STC 416] ). The

matter may have to be considered in the light of the

28

provisions of the particular statute in question and

the fact-situation obtaining in each case. It is

difficult to visualise all situations hypothetically

and provide an answer. Be that as it may, the

question that frequently arises for consideration,

is, in what situation/cases the non-compliance or

error or mistake, committed by the statutory

authority or tribunal, makes the decision rendered

ultra vires or a nullity or one without jurisdiction?

If the decision is without jurisdiction,

notwithstanding the provisions for obtaining reliefs

contained in the Act and the “ouster clauses”, the

jurisdiction of the ordinary court is not excluded.

So, the matter assumes significance. Since the

landmark decision in Anisminic Ltd. v. Foreign

Compensation Commission [(1969) 2 AC 147 : (1969) 1

All ER 208 : (1969) 2 WLR 163, HL] the legal world

seems to have accepted that any “jurisdictional

error” as understood in the liberal or modern

approach, laid down therein, makes a decision ultra

vires or a nullity or without jurisdiction and the

“ouster clauses” are construed restrictively, and

such provisions whatever their stringent language be,

have been held, not to prevent challenge on the

ground that the decision is ultra vires and being a

complete nullity, it is not a decision within the

meaning of the Act. The concept of jurisdiction has

acquired “new dimensions”. The original or pure

theory of jurisdiction means “the authority to

decide” and it is determinable at the commencement

and not at the conclusion of the enquiry. The said

approach has been given a go-by in Anisminic

case [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969)

2 WLR 163, HL] as we shall see from the discussion

hereinafter [see De Smith, Woolf and Jowell —Judicial

Review of Administrative Action (1995 Edn.) p.

238; Halsbury's Laws of England (4th Edn.) p. 114,

para 67, footnote (9)]. As Sir William Wade observes

in his book, Administrative Law (7th Edn.), 1994, at

p. 299:

“The tribunal must not only have

jurisdiction at the outset, but must retain

it unimpaired until it has discharged its

task.”

The decision in Anisminic case [(1949) 76 IA 244 :

AIR 1949 PC 297] [(1949) 76 IA 244 : AIR 1949 PC 297]

has been cited with approval in a number of cases by

this Court: citation of a few such cases — Union of

India v. Tarachand Gupta & Bros. [(1971) 1 SCC 486 :

AIR 1971 SC 1558] (AIR at p. 1565), A.R.

Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC

29

(Cri) 372] (SCC at p. 650), R.B. Shreeram Durga

Prasad and Fatehchand Nursing Das v. Settlement

Commission (IT & WT) [(1989) 1 SCC 628 : 1989 SCC

(Tax) 124] (SCC at p. 634), N.

Parthasarathy v. Controller of Capital Issues [(1991)

3 SCC 153] (SCC at p. 195), Associated Engineering

Co. v. Govt. of A.P. [(1991) 4 SCC 93 : AIR 1992 SC

232] , Shiv Kumar Chadha v. Municipal Corpn. of

Delhi [(1993) 3 SCC 161] (SCC at p. 173). Delivering

the judgment of a two-Member Bench in M.L.

Sethi v. R.P. Kapur [(1972) 2 SCC 427 : AIR 1972 SC

2379] Mathew, J. in paras 10 and 11 of the judgment

explained the legal position after Anisminic

case [(1949) 76 IA 244 : AIR 1949 PC 297] [(1949) 76

IA 244 : AIR 1949 PC 297] to the following effect:

“10. The word ‘jurisdiction’ is a verbal cast

of many colours. Jurisdiction originally

seems to have had the meaning which Lord Baid

ascribed to it in Anisminic Ltd. v. Foreign

Compensation Commission [(1949) 76 IA 244 :

AIR 1949 PC 297] [(1949) 76 IA 244 : AIR 1949

PC 297] , namely, the entitlement ‘to enter

upon the enquiry in question’. If there was

an entitlement to enter upon an enquiry into

the question, then any subsequent error could

only be regarded as an error within the

jurisdiction. The best known formulation of

this theory is that made by Lord Dennan

in R. v. Bolton [(1841) 1 QB 66 : 10 LJMC 49]

. He said that the question of jurisdiction

is determinable at the commencement, not at

the conclusion of the enquiry. In Anisminic

Ltd. [(1949) 76 IA 244 : AIR 1949 PC 297]

[(1949) 76 IA 244 : AIR 1949 PC 297], Lord

Reid said:

‘But there are many cases where, although the

tribunal had jurisdiction to enter on the

enquiry, it has done or failed to do

something in the course of the enquiry which

is of such a nature that its decision is a

nullity. It may have given its decision in

bad faith. It may have made a decision which

it had no power to make. It may have failed

in the course of the enquiry to comply with

the requirements of natural justice. It may

in perfect good faith have misconstrued the

provisions giving it power to act so that it

failed to deal with the question remitted to

it and decided some question which was not

remitted to it. It may have refused to take

30

into account something which it was required

to take into account. Or it may have based

its decision on some matter which, under the

provisions setting it up, it had no right to

take into account. I do not intend this list

to be exhaustive.’

In the same case, Lord Pearce said:

‘Lack of jurisdiction may arise in various

ways. There may be an absence of those

formalities or things which are conditions

precedent to the tribunal having any

jurisdiction to embark on an enquiry. Or the

tribunal may at the end make an order that it

has no jurisdiction to make. Or in the

intervening stage while engaged on a proper

enquiry, the tribunal may depart from the

rules of natural justice; or it may ask

itself the wrong questions; or it may take

into account matters which it was not

directed to take into account. Thereby it

would step outside its jurisdiction. It would

turn its enquiry into something not directed

by Parliament and fail to make the enquiry

which Parliament did direct. Any of these

things would cause its purported decision to

be a nullity.’

11. The dicta of the majority of the House of Lords,

in the above case would show the extent to which

‘lack’ and ‘excess’ of jurisdiction have been

assimilated or, in other words, the extent to which

we have moved away from the traditional concept of

‘jurisdiction’. The effect of the dicta in that case

is to reduce the difference between jurisdictional

error and error of law within jurisdiction almost to

vanishing point. The practical effect of the decision

is that any error of law can be reckoned as

jurisdictional. This comes perilously close to saying

that there is jurisdiction if the decision is right

in law but none if it is wrong. Almost any

misconstruction of a statute can be represented as

‘basing their decision on a matter with which they

have no right to deal’, ‘imposing an unwarranted

condition’ or ‘addressing themselves to a wrong

question’. The majority opinion in the case leaves a

court or tribunal with virtually no margin of legal

error. Whether there is excess of jurisdiction or

merely error within jurisdiction can be determined

only by construing the empowering statute, which will

give little guidance. It is really a question of how

much latitude the court is prepared to allow….”

31

In a subsequent Constitution Bench decision, Hari

Prasad Mulshanker Trivedi v. V.B. Raju [(1974) 3 SCC

415 : AIR 1973 SC 2602] delivering the judgment of

the Bench, Mathew, J., in para 27 at page 2608 of the

judgment, stated thus: (SCC pp. 423-24, para 28)

“… Though the dividing line between lack of

jurisdiction or power and erroneous exercise

of it has become thin with the decision of

the House of Lords in the Anisminic

case [Anisminic Ltd. v. Foreign Compensation

Commission, (1967) 3 WLR 382 : (1967) 2 All

ER 986] , we do not think that the

distinction between the two has been

completely wiped out. We are aware of the

difficulty in formulating an exhaustive rule

to tell when there is lack of power and when

there is an erroneous exercise of it. The

difficulty has arisen because the word

‘jurisdiction’ is an expression which is used

in a variety of senses and takes its colour

from its context, (see per Diplock, J. at p.

394 in the Anisminic case [Anisminic

Ltd. v. Foreign Compensation Commission,

(1967) 3 WLR 382 : (1967) 2 All ER 986] ).

Whereas the ‘pure’ theory of jurisdiction

would reduce jurisdictional control to a

vanishing point, the adoption of a narrower

meaning might result in a more useful legal

concept even though the formal structure of

law may lose something of its logical

symmetry. ‘At bottom the problem of defining

the concept of jurisdiction for purpose of

judicial review has been one of public policy

rather than one of logic’. [S.A. Smith,

‘Judicial Review of Administrative Action,

2nd Edn., p. 98. (1968 Edn.)]”

The observation of the learned author, (S.A. De

Smith) was continued in its 3rd Edn. (1973) at p. 98

and in its 4th Edn. (1980) at p. 112 of the book. The

observation aforesaid was based on the then

prevailing academic opinion only as is seen from the

footnotes. It should be stated that the said

observation is omitted from the latest edition of the

book De Smith, Woolf and Jowell — Judicial Review of

Administrative Action — 5th Edn. (1995) as is evident

from p. 229; probably due to later developments in

the law and the academic opinion that has emerged due

to the change in the perspective.

335. After 1980, the decision in Anisminic

32

case [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969)

2 WLR 163, HL] came up for further consideration

before the House of Lords, Privy Council and other

courts. The three leading decisions of the House of

Lords wherein Anisminic principle was followed and

explained, are the following: Racal Communications

Ltd., In re [1981 AC 374 : (1980) 2 All ER 634 :

(1980) 3 WLR 181, HL] , O'Reilly v. Mackman [(1983) 2

AC 237 : (1982) 3 All ER 1124 : (1982) 3 WLR 1096,

HL] , Re. v. Hull University Visitor [1993 AC 682 :

(1993) 1 All ER 97 : (1992) 3 WLR 1112, HL] . It

should be noted that Racal, In re case [(1968) 3 SCR

662 : AIR 1969 SC 78 : (1968) 22 STC 416] [(1964) 6

SCR 261 : AIR 1964 SC 1006 : (1964) 15 STC 450]

the Anisminic principle was held to be inapplicable

in the case of (superior) court where the decision of

the court is made final and conclusive by the

statute. (The superior court referred to in this

decision is the High Court) [1981 AC 374 (383, 384,

386, 391)]. In the meanwhile, the House of Lords

in Council of Civil Service Unions v. Minister for

the Civil Service [1985 AC 374 : (1984) 3 All ER

935 : (1984) 3 WLR 1174, HL] enunciated three broad

grounds for judicial review, as “legality”,

“procedural propriety” and “rationality” and this

decision had its impact on the development of the law

in post-Anisminic period. In the light of the above

four important decisions of the House of Lords, other

decisions of the court of appeal, Privy Council etc.

and the later academic opinion in the matter the

entire case-law on the subject has been reviewed in

leading textbooks. In the latest edition of De Smith

on Judicial Review of Administrative Action — edited

by Lord Woolf and Jowell, Q.C. [Professor of Public

Law, 5 Edn. — 1995], in Chapter 5, titled as

“Jurisdiction, Vires, Law and Fact” (pp. 223-294),

there is exhaustive analysis about the concept

“Jurisdiction” and its ramifications. The authors

have discussed the pure theory of jurisdiction, the

innovative decision in Anisminic case [(1969) 2 AC

147 : (1969) 1 All ER 208 : (1969) 2 WLR 163, HL] ,

the development of the law in the postAnisminic period, the scope of the “finality” clauses

(exclusion of jurisdiction of courts) in the

statutes, and have laid down a few propositions at

pp. 250-256 which could be advanced on the subject.

The authors have concluded the discussion thus at p.

256:

“After Anisminic virtually every error of law

is a jurisdictional error, and the only place

left for non-jurisdictional error is where

the components of the decision made by the

33

inferior body included matters of fact and

policy as well as law, or where the error was

evidential (concerning for example the burden

of proof or admission of evidence). Perhaps

the most precise indication of jurisdictional

error is that advanced by Lord Diplock

in Racal Communications [1981 AC 374 : (1980)

2 All ER 634 : (1980) 3 WLR 181, HL] , when

he suggested that a tribunal is entitled to

make an error when the matter ‘involves, as

many do interrelated questions of law, fact

and degree’. Thus it was for the county court

judge in Pearlman [Pearlman v. Keepers and

Governors of Harrow School, (1979) 1 All ER

365 : (1978) 3 WLR 736] to decide whether the

installation of central heating in a dwelling

amounted to a ‘structural alteration, extension or addition’. This was a ‘typical question of mixed law, fact and degree which only

a scholiast would think it appropriate to

dissect into two separate questions, one for

decision by the superior court, viz., the

meaning of these words, a question which must

entail considerations of degree, and the

other for decision by a county court, viz.,

the application of words to the particular

installation, a question which also entails

considerations of degree.

It is, however, doubtful whether any test

of jurisdictional error will prove satisfactory. The distinction between jurisdictional

and non-jurisdictional error is ultimately

based upon foundations of sand. Much of the

superstructure has already crumbled. What remains is likely quickly to fall away as the

courts rightly insist that all administrative

action should be, simply, lawful, whether or

not jurisdictionally lawful.”

336. The jurisdictional control exercised by superior

courts over subordinate courts, tribunals or other

statutory bodies and the scope and content of such

power has been pithily stated in Halsbury's Laws of

England — 4th Edn. (Reissue), 1989 Vol. 1(1), p. 113

to the following effect:

“The inferior court or tribunal lacks jurisdiction if it has no power to enter upon an

enquiry into a matter at all; and it exceeds

jurisdiction if it nevertheless enters upon

such an enquiry or, having jurisdiction in

the first place, it proceeds to arrogate an

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authority withheld from it by perpetrating

a major error of substance, form or procedure, or by making an order or taking action

outside its limited area of competence. Not

every error committed by an inferior court or

tribunal or other body, however, goes to jurisdiction. Jurisdiction to decide a matter

imports a limited power to decide that matter

incorrectly.

A tribunal lacks jurisdiction if (1) it is

improperly constituted, or (2) the proceedings have been improperly instituted, or (3)

authority to decide has been delegated to it

unlawfully, or (4) it is without competence

to deal with a matter by reason of the

parties, the area in which the issue arose,

the nature of the subject-matter, the value

of that subject-matter, or the non-existence

of any other prerequisite of a valid adjudication. Excess of jurisdiction is not materially distinguishable from lack of jurisdiction and the expressions may be used interchangeably.

Where the jurisdiction of a tribunal is

dependent on the existence of a particular

state of affairs, that state of affairs may

be described as preliminary to, or collateral

to the merits of, the issue, or as jurisdictional.(p. 114)

There is a presumption in construing statutes which confer jurisdiction or discretionary powers on a body, that if that body makes

an error of law while purporting to act

within that jurisdiction or in exercising

those powers, its decision or action will exceed the jurisdiction conferred and will be

quashed. The error must be one on which the

decision or action depends. An error of law

going to jurisdiction may be committed by a

body which fails to follow the proper procedure required by law, which takes legally irrelevant considerations into account, or

which fails to take relevant considerations

into account, or which asks itself and answers the wrong question. (pp. 119-120)

The presumption that error of law goes to

jurisdiction may be rebutted on the construction of a particular statute, so that the

relevant body will not exceed its jurisdic35

tion by going wrong in law. Previously, the

courts were more likely to find that errors

of law were within jurisdiction; but with the

modern approach errors of law will be held to

fall within a body's jurisdiction only in exceptional cases. The courts will generally

assume that their expertise in determining

the principles of law applicable in any case

has not been excluded by Parliament.(p. 120)

Errors of law include misinterpretation of

a statute or any other legal document or a

rule of common law; asking oneself and answering the wrong question, taking irrelevant

considerations into account or failing to

take relevant considerations into account

when purporting to apply the law to the

facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which

disclose faulty legal reasoning or which are

inadequate to fulfil an express duty to give

reasons, and misdirecting oneself as to the

burden of proof.” (pp. 121-122)

337. H.W.R. Wade and C.F. Forsyth in their book —Administrative Law, 7th Edn., (1994) — discuss the subject regarding the jurisdiction of superior courts

over subordinate courts and tribunals under the head

“Jurisdiction over Fact and Law” in Chapter 9, pp.

284 to 320. The decisions before Anisminic and those

in the post-Anisminic period have been discussed in

detail. At pp. 319-320, the authors give the Summary

of Rules thus:

“Jurisdiction over fact and law: Summary

At the end of a chapter which is top-heavy with

obsolescent material it may be useful to summarise the position as shortly as possible. The

overall picture is of an expanding system struggling to free itself from the trammels of classical doctrines laid down in the past. It is not

safe to say that the classical doctrines are

wholly obsolete and that the broad and simple

principles of review, which clearly now commend

themselves to the judiciary, will entirely supplant them. A summary can therefore only state

the long-established rules together with the simpler and broader rules which have now superseded

them, much for the benefit of the law. Together

they are as follows:

36

Errors of fact

Old rule: The court would quash only if the

 erroneous fact was jurisdictional.

New rule: The court will quash if an erroneous

and decisive fact was —

(a) jurisdictional

(b) found on the basis of no evidence; or

(c) wrong, misunderstood or ignored.

Errors of law

Old rule: The court would quash only if the error

 was —

(a) jurisdictional; or

(b) on the face of the record.

New rule: The court will quash for any decisive

 error, because all errors of law are

 now jurisdictional.”

58. For the benefit of the High Courts across the country, we

may refer to a very erudite article authored by Krystal Cunningham-Foran, a legal expert working as a senior associate in Colin

Biggers & Paisley's Planning Government Infrastructure & Environment group, on the topic “Jurisdictional Error”. The learned

author has discussed a judgment rendered by the High Court of

Australia setting out practical guidance for establishing jurisdictional error in the context of judicial review proceedings in

respect of a decision about the revocation of a decision to cancel a visa. Article reads thus:-

“The case of LPDT v Minister for Immigration,

Citizenship, Migrant Services and Multicultural

 Affairs reported in [2024] HCA 12 concerned judicial

review proceedings in the High Court of Australia

(High Court) in which the High Court provided

practical guidance about the threshold of materiality

in the context of jurisdictional error.

The test for establishing jurisdictional error is

37

two-fold. Firstly, it must be established that an

error occurred and secondly, the error must be

material such that the decision affected by error

could realistically have been different if there was

no error. The practical guidance provided by the High

Court in respect of this test is set out in this

article.

The judicial review proceedings relevantly concerned

an allegation that the decision of the Administrative

Appeals Tribunal (Tribunal) in respect of a decision

made under section 501CA(4) of the Migration Act

 1958 (Cth) (Migration Act) about the revocation of a

decision to cancel the Appellant's visa (Cancellation

Decision) was affected by jurisdictional error.

There was no dispute that the Tribunal's decision

involved an error because the Tribunal did not comply

with a direction of the Minister in relation to the

revocation of a mandatory cancellation of a visa

under section 501CA (Direction) in breach of section

499(2A) of the Migration Act.

In respect of the materiality of the error, the High

Court held that the decision reached by the Tribunal

could have been different if there was no error and

thus the threshold of materiality was met.

The High Court allowed the appeal, set aside the

decision of the Full Court of the Federal Court of

Australia, and ordered the issue of a writ of

certiorari quashing the Tribunal's decision and a

writ of mandamus directing the Tribunal to determine

the Appellant's request for revocation of the

Cancellation Decision according to law.

What is jurisdictional error?

Jurisdictional error arises where a decision-maker

with authority to make a decision under statute is in

breach of an express or implied condition of the

decision-making authority, such that the decision

made lacks legal force and is "in law…no decision at

all".

The High Court observed that the following categories

of jurisdictional error often arise, but that the

categories are not closed:

 A breach by a third-party of a condition of a

statutory process before a decision is made.

 A breach by a decision-maker given authority

under statute of a condition of making a decision.

38

Common errors in this context include: the decisionmaker misunderstands the applicable law, asks the

wrong question, identifies a wrong issue, ignores

relevant material, relies on irrelevant material, exceeds the bounds of what is reasonable, denies a requirement of procedural fairness, or makes an erroneous finding or reaches a mistaken conclusion.

Two-part test for jurisdictional error

Not every breach of an express or implied condition

of making a decision will render the decision no

decision at all.

The limits imposed by the relevant statute on the

making of a decision must be understood to determine

the following:

 "…Whether an error has occurred (that is,

whether there has been a breach of an express or implied condition of the statutory conferral of decision-making authority)..."

 "…Whether any such error is jurisdictional

(that is, whether the error has resulted in the decision made lacking legal force)."

Practical guidance for considering jurisdictional

error

The High Court stated the following practical

guidance in respect of the test for jurisdictional

error:

 Both parts of the test start with a consideration of the statute to understand the nature of the

alleged error in its statutory context.

 Both parts of the test are backward-looking in

that they are answered having regard to the decision

that was made, and if necessary, how that decision

was made.

 Whilst the applicant has the onus of proof on

the balance of probabilities, proving the facts ought

not be difficult or contentious. In some cases the

tendering of the decision-maker's reasons is suffi39

cient, whereas in others, for example those involving

an allegation of a denial of procedural fairness, may

require evidence of the content or information required to be provided to the decision-maker.

 To establish materiality, it is not necessary

that absent the error a different decision "would"

have been made, rather it is whether a different decision "could realistically" have been made. The High

Court observed that "realistic" is used to distinguish a possible different outcome from an outcome

that is fanciful or improbable.

 The threshold of materiality is not onerous or

demanding. What must be demonstrated to meet the

threshold depends upon the error. A Court in determining whether the threshold is met must not assume

the function of the decision-maker and fall into a

merits review of the decision made.

 Once the applicant establishes an error and

that there is a realistic possibility of a different

outcome if the error had not been made, the threshold

of materiality is met and relief is justified subject

to any utility and discretion.

The High Court also observed that in some cases, such

as those involving apprehended or actual bias, the

alleged error will be jurisdictional regardless of

any effect on the decision made, whilst in others,

such as those involving unreasonableness, the

potential for the decision to be effected is inherent

in the nature of the error. In both of these

examples, the error satisfies the requirement of

materiality.

The practical guidance from the High Court set out

above overrides any previous guidance of the Courts.

Jurisdictional error established in this case

The High Court was satisfied that the threshold of

materiality was satisfied in this case because the

Appellant established on the balance of probabilities

that a different decision realistically could have

been made if the Tribunal followed the process of

reasoning required by the Direction in deciding

whether the Cancellation Decision should be revoked.

Conclusion

40

The High Court allowed the appeal, set aside the

decision of the Full Court of the Federal Court of

Australia, and ordered the issue of a writ of

certiorari quashing the Tribunal's decision and a

writ of mandamus directing the Tribunal to determine

the Appellant's request for revocation of the

Cancellation Decision according to law.”

 (Emphasis supplied)

59. Before we close this matter, we would like to put a question

to the executing court as to why it did not deem fit to afford

one opportunity of hearing to the appellants herein? What would

have happened if the executing court would have permitted the

appellants herein to place their written objections on record?

It is true that there was some delay on the part of the appellants herein in responding to the summons issued by it, but at

the same time, having regard to the severe consequences, the executing court should have been a little more considerate while

declining even to take the objections on record and give one opportunity of hearing to the appellants before passing the order

of arrest, detention in a civil prison and attachment of the

property. This aspect unfortunately has been overlooked even by

the High Court while affirming the order passed by the executing

court. The High Court itself could have remanded the matter to

the executing court with a view to give an opportunity of hearing to the appellants herein. The supervisory jurisdiction

vested in the High Court under Article 227 of the Constitution

is meant to take care of such situations like the one on hand.

60. In the overall view of the matter, we are convinced that the

impugned order passed by the High Court is unsustainable in law.

41

In such circumstances, we set aside the order passed by the High

Court and also that of the executing court.

61. However, we clarify that it shall be open for the respondents herein (decree-holders) to file a fresh application if at

all there is any interference at the instance of the appellants

herein (judgment-debtors) in so far as their possession of the

property in question is concerned. If any such fresh application

is filed, the executing court shall look into the same strictly

keeping in mind the observations made by this Court in this order and decide the same on its own merits.

62. The appeal is allowed in the aforesaid terms.

63. Pending application, if any, shall stand disposed of accordingly.

64. The Registry is directed to circulate one copy each of this

judgment to each of the High Courts with a further request that

each of the High Courts shall circulate one copy of this judgment in their respective District Courts.

………………………………………..J

 (J.B. PARDIWALA)

………………………………………..J

 (R. MAHADEVAN)

NEW DELHI:

JANUARY 17th, 2025.

42