JUDGMENT T.S. Misra, J.
1. This appeal is directed against the decision or the Additional Civil Judge, Mainpuri. The material facts for the decision of this appeal are as follows. On 22nd March, 1955 the plaintiff filed the suit against the defendant and Gram Sabha concerned for partition of certain agricultural plots of land under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act in the Court of Munsif Mainpuri. A preliminary decree was passed in the suit on 4th March, 1957. Lots were thereafter prepared by the Revenue Authorities concerned on 16th June, 1958. Thereafter a final decree was ordered to be drawn up on 19th November, 1959, and it was actually drawn up on 10th February, 1961. The decree-holder filed an execution petition for possession and it appears that possession was delivered to him in pursuance of the final decree so passed.
An application was thereupon filed under Section 47, Civil Procedure Code by Puttu Lal judgment-debtor, inter alia, contending that the final decree passed by the Civil Court was a nullity inasmuch as the Civil Court had no jurisdiction on 19th November, 1959, to pass such a decree in the matter.
It was, therefore, pleaded that the decree was not executable and possession should not have been delivered to the decree-holders in pursuance of such a decree. This objection did not find favour with the Munsif who rejected the application under Section 47, Civil Procedure Code on SOth September, 1964. The judgment-debtor filed an appeal from the said order. That appeal was also dismissed by the Additional Civil Judge, Mainpuri. Aggrieved by the said decision the judgment-debtor has come up to this Court in execution second appeal.
2. The learned Counsel for the appellant argued that in view of the amendment made in the relevant provisions of the U. P. Zamindari Abolition and Land Reforms Act by Act XXXVII of 1958 the Civil Court had no jurisdiction to pass the final decree in the case and as such the final decree was a nullity. There is great force in this submission. A similar question arose in the case of Nathu Singh v. Dular Singh, 1970 All LJ 923 in which a Division Bench of this Court considered the effect of the amendments introduced by the aforesaid Amendment Act of 1958 upon a suit already pending. It was held that in view of the amendment introduced by the Amendment Act of 1958 the suit for partition was maintainable in the Revenue Court and was governed entirely by the provisions applicable to suits tried by the Revenue Courts. It was the Revenue Court which would declare the rights of the several parties, and the partition of the holding or separation of the shares therein would also be effected by the Revenue Court.
Referring to Section 182-B of the Act it was observed that when Section 182 provides that the partition of a holding or separation of share shall be made by the Court it refers the Court which entertains the suit and that is the Revenue Court. Therefore, after the Amendment Act of 1958 a suit for partition of Bhumidhari holding lies in the Revenue Court, which declares the rights of the parties and finally partitions the holdings or separates the shares therein. In regard to the cases which were already pending at the time of the enforcement of the Amendment Act it was observed that after passing the preliminary decree the jurisdiction of the Civil Court had exhausted. There was nothing in the law to empower the Civil Court to partition the holding. That was a matter falling entirely within the scope of the Collector's jurisdiction. It was also observed that whether the un-amended Section 182-B or the amended Section 182-B applied it was clear that the Civil Court will nave no jurisdiction to partition the holding. In the instant case the final decree was obviously ordered to be drawn up and in fact actually drawn up after the enforcement of the Amendment Act, 1958. The Civil Court had, therefore, no jurisdiction to pass the final decree in the case. Its jurisdiction was exhausted on the passing of the preliminary decree. In my opinion the final decree passed by the Civil Court in the present case was, therefore, without jurisdiction and a nullity.
3. It is a settled law that when a decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record, (see V. D. Modi v. R. A. Rehman, AIR 1970 SC 1475). Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject-matter was wholly foreign to its jurisdiction or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it, (see Hiralal v. Kali Nath, AIR 1962 SC 199).
4. Applying these principles to the facts of the present case we find that on 19th November, 1959 when the final decree was ordered to be drawn up the Civil Court did not have the jurisdiction to pass such a decree. The validity of the decree could, therefore, be challenged in execution proceedings in an objection under Section 47 of the Code of Civil Procedure. The Courts below were, therefore, not justified in rejecting the objection of the appellant. However, in order to do justice in the cage it would be proper to quash the execution proceedings which were based on a final decree which was a nullity and direct the Trial Court to send the case to the competent Revenue Court for proceeding in accordance with law. This course appears to be quite reasonable as well.
5. In the circumstances the appeal is allowed, the order under appeal is set aside and the entire proceedings subsequent to the passing of the preliminary decree dated 16th June 1958 are quashed. The Trial Court is directed to send the record of the case for taking further proceedings for partition to the competent Revenue Court as provided by law. No order as to costs.