SUBHASH MAHADEVASA HABIB versus NEMASA AMBASA DHARMADAS (D) BY LRS. AND ORS.

SUBHASH MAHADEVASA HABIB versus NEMASA AMBASA DHARMADAS (D) BY LRS. AND ORS.

The decree in the first suit (O.S. No. 61 of 1971), dismissing the challenge to alienation of property against the plaintiff, attained finality and bars subsequent challenges including those by assignees of the prior parties. Collateral challenge to the decree based on alleged lack of pecuniary jurisdiction is unsustainable in law. The plaintiff is entitled to redeem the mortgage and to possession of the properties; the High Court's finding to the contrary is set aside.

Parties
Appellant: Subhash Mahadevasa Habib; Respondents: Nemasa Ambasa Dharmadas (D) by LRs. and Ors.
Jurisdiction
India
Judgment Date
19 March 2007
Procedural Posture
Appeal / Supreme Court Final Judgment
Outcome
Appeal allowed; High Court judgment set aside
Legal Topics
Res Judicata, Jurisdiction, Mortgage Redemption, Place of Suing
Civil Procedure Property Law Res Judicata Jurisdiction Mortgage Redemption Place of Suing

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Parties

Subhash Mahadevasa Habib

Appellant

Nemasa Ambasa Dharmadas (D) by LRs. and Ors.

Respondents

Procedural Posture

Appeal / Supreme Court Final Judgment

Legal Issues

  1. 1 Whether decree passed by a court lacking pecuniary jurisdiction can be collaterally challenged in subsequent suits.
  2. 2 Whether the decree in the suit filed by the wife and sons of defendant No.2 bars subsequent claims by their assignee.
  3. 3 Scope of 'place of suing' in CPC Section 21A: does it cover pecuniary as well as territorial jurisdiction.

Ratio Decidendi

The decree in the first suit (O.S. No. 61 of 1971), dismissing the challenge to alienation of property against the plaintiff, attained finality and bars subsequent challenges including those by assignees of the prior parties. Collateral challenge to the decree based on alleged lack of pecuniary jurisdiction is unsustainable in law. The plaintiff is entitled to redeem the mortgage and to possession of the properties; the High Court's finding to the contrary is set aside.

Court Disposition

Appeal allowed; High Court judgment set aside

Orders

  • Plaintiff entitled to final, composite decree for redemption of both suit properties.
  • Mortgagee (defendant No.1 and LRs) must execute deed of redemption/reconveyance in favour of plaintiff after receipt of amounts as fixed by trial court.