Supreme Court of India
BHUDEV MALLICK ALIAS BHUDEB MALLICK & ANR.versusRANAJIT GHOSHAL & ORS.
- Citation
- 2025 INSC 175
- Decided
- 17 January 2025
- Disposal
- Appeal(s) allowed
Holding
The executing court’s order of arrest, detention and attachment was a jurisdictional error because it was passed without a finding that the judgment‑debtors had a genuine opportunity to obey the permanent injunction and willfully disobeyed it, and without compliance with the mandatory affidavit requirement of Order XXI Rule 11‑A.
Summary
The appellants, heirs of the original defendants in a 1965 title suit, were restrained by a permanent injunction that barred them from disturbing the respondents' possession of the suit property. After four decades, the respondents filed an execution application in 2017 alleging breach of the injunction, leading the trial court to order the appellants' arrest, detention in civil prison for 30 days, and attachment of their property ex parte. The appellants objected, but the trial court dismissed their objections; the High Court upheld the order, finding no jurisdictional error. On appeal, the Supreme Court examined the statutory framework of Sections 51 and 58 of the CPC, Order XXI Rule 32 and Rule 11‑A, and the non‑applicability of limitation under Art.136 of the Limitation Act to perpetual injunctions. It held that the executing court failed to record a finding that the appellants had a genuine opportunity to comply and willfully disobeyed the decree, and that the order was therefore a jurisdictional error. Consequently, the Supreme Court set aside both the High Court’s and the trial court’s orders and allowed the appeal.
Issues considered
- The execution application filed after a 40‑year lapse is barred by limitation.
- Whether the executing court complied with Order XXI Rule 11‑A by requiring an affidavit stating grounds for arrest.
- Whether the court correctly applied Sections 51 and 58 of the CPC and Order XXI Rule 32 in ordering arrest, detention and attachment.
- What constitutes a jurisdictional error in the context of execution of a permanent injunction.
Legislation cited
- Code of Civil Procedure, 1908s. 51, s. 58, s. Order XXI Rule 11-A, s. Order XXI Rule 32
- Limitation Act, 1963s. Art.136
Headnote
Issue for Consideration A suit for confirmation of possession or in the alternative recovery of possession and injunction was filed by the predecessor in interest of the Respondents against the predecessor in interest of the Appellants. The suit was decreed and 40 years later, claiming breach of decree of permanent injunction. When the written objections of the Appellants were not accepted to the same by the Trial Court, a Revision Application was filed before High court; During its pendency, Trial Court allowed the Execution Application ex-parte and ordered arrest
Subjects
permanent injunctionexecution of decreecivil prisonattachment of propertyjurisdictional errorCPClimitationRule 32Rule 11-A
Judgment
[2025] 1 S.C.R. 1598 : 2025 INSC 175
Bhudev Mallick Alias Bhudeb Mallick & Anr.
v.
Ranajit Ghoshal & Ors.
(Civil Appeal No. 2248 of 2025)
17 January 2025
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
A suit for confirmation of possession or in the alternative recovery of
possession and injunction was filed by the predecessor in interest
of the Respondents against the predecessor in interest of the
Appellants. The suit was decreed and 40 years later, Execution
Application was filed claiming breach of decree of permanent
injunction. When the written objections of the Appellants were not
accepted to the same by the Trial Court, a Revision Application was
filed before High court; During its pendency, Trial Court allowed the
Execution Application ex-parte and ordered arrest and detention of
Appellants in civil prison for a period of 30 days and attachment
of their property in accordance with law. Against this, a Revision
Application was filed by appellants before the High Court. That
was dismissed holding that there was no jurisdictional error in the
order of the executing court.
The issues before the Hon’ble Supreme Court are as to whether
the Execution Application is belated; whether the Courts have
applied correct procedure to come to their decisions; and what
constitutes jurisdictional error.
Headnotes†
Sections 51 and 58 of the Code of Civil Procedure, 1908 – To
be read harmoniously:
Held: Section 51 defines the jurisdiction and power of the court to
enforce execution and enumerates modes by which the court may
order execution of a decree according to the nature of relief granted
in favour of a decree-holder – 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 – Section 58 fixes the period for which the
judgment-debtor can be detained in a civil prison – Sections 51
and 58 should be read together. [Paras 19, 22, 24, 33]
[2025] 1 S.C.R. 1599
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
Order XXI Rule 32 of the Code of Civil Procedure, 1908 –
Explained:
Held: The Rule 32 in its sub-rules: (1) States that where a decree
is for specific performance of a contract, or for an injunction, and
the judgment-debtor willfully disobeys such decree, it may be
executed by attachment of property of the judgment-debtor or
by his detention, or by both; (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; (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 judgment debtor fails to obey
the decree; (4) Deals with cases where the judgment debtor obeys
the decree or the decree-holder commits default; (5) Empowers
the executing court to take appropriate action for enforcing the
decree at the cost of the judgment-debtor who willfully disobeys
such decree; and the Explanation clarifies that the expression “the
act required to be done” covers prohibitory as also mandatory
injunctions. [Paras 26-31]
Order XXI Rule 11A Code of Civil Procedure, 1908 examined
in light of Section 51:
Held: The Law Commission considered the amendment of 1936
to Section 51 and 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 – As
per Order XXI Rule 11-A an application made for the arrest and
detention of the judgment-debtor must state or be accompanied by
an affidavit specifying the grounds on which arrest is sought – This
Rule is in conformity with the substantive provisions of proviso to
Section 51 – Stating of grounds or filing of affidavit is essential and
thus mandatory – Unless it is complied with, no arrest or detention
of the judgment-debtor can be ordered. [Paras 32, 34, 35]
Order XXI Rule 32 of CPC, 1908 and its effect on permanent
injunction – Examined in light of judicial pronouncements:
Held: A decree of permanent injunction is executable under Order
XXI Rule 32 – Breach of decree of permanent injunction is a
1600 [2025] 1 S.C.R.
Supreme Court Reports
continuing disobedience entailing penal consequences – In Jai
Dayal and Others v. Krishan Lal Garg and Anr., (1996) 11 SCC
588, this Hon’ble Court held that the decree of attachment made for
enforcement of the perpetual injunction and mandatory injunction
requires to be complied with and in case of its disobedience, the
judgment-debtor is liable to detention in the civil prison and his
property is liable to attachment under Order XXI Rule 32, CPC,
1908. [Para 37]
Art.136 of the Limitation Act and execution of decree of
permanent injunction – In the light of judicial pronouncements:
Held: The High Court of Rajasthan in Maga Ram & Anr v. Kana
Ram & Ors., AIR 1993 Rajasthan 208 held that Art.136 of the
Limitation Act has no application in case of execution of decree
granting mandatory injunction and also the decree for prohibitory
injunction become enforceable only when the judgement debtors
made fresh encroachment on the disputed land – The High Court
of Bombay in the case of Shri Benedito (Betty) Dias v. Armando
Benedita Fernandes, 2017(4) AIR Bom. R 381 relied on: (a) Jai
Dayal (supra) wherein it was held that non-compliance of decree
of mandatory or prohibitory injunction is a continuing disobedience
and therefore the plea of execution being barred by limitation,
cannot be accepted; and (b) A decision of the High Court of Kerala
wherein it was held that an application for enforcement of the decree
granting prohibitory injunction shall not be subject to any period of
limitation – The High Court of Punjab and Haryana in the Dilbagh
Singh and Others v. Harpal Singh Alias Harpal Singh Chela and
Ors., 2020 Supreme (P&H) 944 held that Order 21 Rule 32(5)
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. [Paras 38-43]
Order XXI Rule 32 – Imprisonment of or attachment of property
of judgment debtor – When ordered:
Held: If it is proved that the judgment debtor willfully and with
impunity disobeyed an order of injunction, the court owes it to
itself to pass an order of imprisonment or attachment – Failure to
exercise this power in appropriate cases might verily undermine the
[2025] 1 S.C.R. 1601
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
respect for judicial institutions in the eyes of litigants – The court
has to record a finding that the judgment-debtor willfully disobeyed
or failed to comply with the decree in spite of opportunity afforded
to him – Each breach of injunction is independent and actionable
in law and the doctrine of res judicata has no application – The
person seeking execution of the decree for injunction is onerous
under the Rule 32(1) 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 person has had an opportunity
of obeying such decree, but has willfully, i.e., consciously and
deliberately, disobeyed such decree, so that it can make an order
of his detention as sought for. [Paras 44-46, 50]
Arrest and attachment – Whether correct procedure was
adopted by the Courts in this case:
Held: There was absolutely no material placed by the respondents/
decree holders before the Courts that the appellants/judgment
debtors have had an opportunity of obeying the decree for injunction,
but have willfully disobeyed it – Only few complaints of breaches
made to the police were placed before the executing court – 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 – If at all a fresh
application is filed with the same prayer before the Executing Court
by the Respondents in future, it has to be dealt by the Court with
keeping in mind this decision. [Paras 51-52, 59, 61]
Principle of Jurisdictional Error – High Court wrongly applied
it – The principle explained in light of judicial pronouncements
and publication:
Held: 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 – Observation of Sir John Beaumont in Joy
Chand Lal Babu v. Kamalaksha Chaudhury, AIR 1949 PC 239
that if erroneous decision which has resulted in the subordinate
Court or tribunal exercising jurisdiction, not vested in it by law,
1602 [2025] 1 S.C.R.
Supreme Court Reports
or it 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 – Joy Chand case identified non-exhaustive list of jurisdictional
errors like: (a) identified a wrong issue; (b) asked a wrong question;
(c) ignored relevant material; (d) relied on irrelevant material; (e)
failed to observe a requirement of procedural fairness; (f) made a
decision involving fraud; (g) made a decision in bad faith; (h) made
a decision without evidence; (i) applied a policy inflexibly – After
the decision of the House of Lords in Anisminic v. The Foreign
Compensation Commission, 1967(2) AER 986 every error of law
is a jurisdictional error – 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, summarised
as: I. Errors of fact – (i) Old rule: The court would quash only if the
erroneous fact that was jurisdictional (ii) 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; II. Errors of law – (i) Old rule: The court would quash
only if the error was (a) jurisdictional; or (b) on the face of the
record (ii) New rule: The court will quash for any decisive error,
because all errors of law are now jurisdictional — Also referred to
an erudite article authored by Krystal Cunningham-Foran on the
topic “Jurisdictional Error” wherein a judgment rendered by the High
Court of Australia setting out practical guidance for establishing
jurisdictional error in the context of judicial review proceedings
was discussed. [Paras 53-58]
Case Law Cited
Jai Dayal And Others v. Krishan Lal Garg and Anr. [1996] Supp. 8
SCR 538 : (1996) 11 SCC 588; Mafatlal Industries Ltd. v. Union of
India [1996] Supp. 10 SCR 585 : (1997) 5 SCC 536 – relied on.
Shivamurthy Mahalingappa Kuchanaur v. Dannammadevi Cycle
Mart, Rabakavi, AIR 1987 Karnataka 26; Joy Chand Lal Babu
v. Kamalaksha Chaudhury, AIR 1949 PC 239; Anisminic v. The
Foreign Compensation Commission, 1967(2) AER 986 – relied on.
Maga Ram & Anr v. Kana Ram & Ors., AIR 1993 Rajasthan
208; Shri Benedito (Betty) Dias v. Armando Benedita Fernandes,
2017(4) AIR Bom. R 381; Dilbagh Singh and Others v. Harpal
Singh Alias Harpal Singh Chela and Ors., 2020 Supreme (P&H)
944 – discussed.
[2025] 1 S.C.R. 1603
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
Books and Periodicals Cited
Code of Civil Procedure, 1908 by Justice C.K. Thakker,
2009 Edn.
List of Acts
Code of Civil Procedure, 1908; Limitation Act, 1963.
List of Keywords
Prohibitory injunction; Arrest; Attachment; Limitation; Civil prison.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2248 of 2025
From the Judgment and Order dated 23.09.2019 of the High Court
at Calcutta in CO No. 3283 of 2019
Appearances for Parties
Rabin Majumder, Joydeep Mukherjee, Advs. for the Appellants.
Mrs. Lalita Kaushik, Adv. for the Respondents.
Judgment / Order of the Supreme Court
Order
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.
1604 [2025] 1 S.C.R.
Supreme Court Reports
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 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.”
[2025] 1 S.C.R. 1605
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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.
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 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
1606 [2025] 1 S.C.R.
Supreme Court Reports
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-
-no-
1/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 written objections & give them
an opportunity of hearing.
[2025] 1 S.C.R. 1607
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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
1608 [2025] 1 S.C.R.
Supreme Court Reports
possession over the suit properties.
6. That unless the truth regarding the possession
comes before the Ld. Court the Instant execution Is
not maintainable.
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,
[2025] 1 S.C.R. 1609
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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 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 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.
1610 [2025] 1 S.C.R.
Supreme Court Reports
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
[2025] 1 S.C.R. 1611
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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
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
1612 [2025] 1 S.C.R.
Supreme Court Reports
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 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.
[2025] 1 S.C.R. 1613
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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 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.
1614 [2025] 1 S.C.R.
Supreme Court Reports
13. In such circumstances referred to above, the learned counsel prayed
that there being merit in his appeal the same may be 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 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;
[2025] 1 S.C.R. 1615
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
(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 judgment-debtor 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 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.”
1616 [2025] 1 S.C.R.
Supreme Court Reports
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 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
[2025] 1 S.C.R. 1617
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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 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
1618 [2025] 1 S.C.R.
Supreme Court Reports
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 judgment-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:-
[2025] 1 S.C.R. 1619
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
“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), 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
1620 [2025] 1 S.C.R.
Supreme Court Reports
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 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 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 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
[2025] 1 S.C.R. 1621
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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 becomes enforceable. The
decree for prohibitory injunction become enforceable
when the judgement-debtors 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
1622 [2025] 1 S.C.R.
Supreme Court Reports
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 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)
[2025] 1 S.C.R. 1623
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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.
42. In the aforesaid context, we may refer to Article 136 of the Limitation
Act, 1963 which reads thus:-
When the decree or order
becomes enforceable or where
the decree or any subsequent
For the order directs any payment
execution of of money or the delivery of
any decree any property to be made at
(other than a certain date of at recurring
a decree Twelve periods, when default in making
136. the payment or delivery in
granting a years.
mandatory respect of which execution is
injunction) or sought, takes place:
order of any Provided that an application for
civil court 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
1624 [2025] 1 S.C.R.
Supreme Court Reports
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 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, 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
[2025] 1 S.C.R. 1625
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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 sub-rule, 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 sub-rule 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 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
1626 [2025] 1 S.C.R.
Supreme Court Reports
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 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 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
[2025] 1 S.C.R. 1627
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Ranajit Ghoshal & Ors.
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 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 decision-maker 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.
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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 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
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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 (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)
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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 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
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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….”
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
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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 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
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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 post-Anisminic 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
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decision made by the 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
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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 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)
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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
jurisdiction 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
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Ranajit Ghoshal & Ors.
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:
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: T he 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:-
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“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 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
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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. Common
errors in this context include: the decision-maker
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.
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● 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 sufficient, 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.
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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
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.
1642 [2025] 1 S.C.R.
Supreme Court Reports
60. In the overall view of the matter, we are convinced that the impugned
order passed by the High Court is unsustainable in law. 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.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Swathi H. Prasad, Hony. Associate Editor
(Verified by: Liz Mathew, Sr. Adv.)
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