ORDER
1. This writ petition is directed against the order dated 1st February 1993 passed by Judge, Small Causes Court, Jhansi, rejecting the objection of the petitioner filed under S. 47 of the Civil Procedure Code in execution of decree against him and the order dated 2-11-93 passed by respondent No. 1, dismissing the revision against the said order.
2. The facts briefly stated are that respondents 3 and 4 filed Suit No. 508 of 1973 against Bhawani Singh and Hardas predecessors-in-interest of the petitioner for ejectment from House No. 1725 situated in Mohalla Nai Basti, Jhansi, arrears of rent and damages. The summons of the suit were served on the defendants. The defendants did not appear on the date fixed for hearing of the case and the suit was decreed ex parte on 9-7-1976.
3. Bhawani Singh and Hardas who were defendants in the suit, after coming to know of the ex parte decree passed in the said suit, filed Suit No. 678 of 1976 for declaration that the decree passed by Judge, Small Causes Court in Suit No. 508 of 1973 was illegal and without jurisdiction on the allegations that the parties had entered into an oral compromise according to which they were liable to pay costs of the suit and the plaintiffs were to get the suit dismissed, in default. They had paid cost to the plaintiff but the plaintiff instead of getting the suit dismissed in default got the suit decreed ex parte. They also filed an application for temporary injunction. The application was rejected. They filed an appeal and the appeal was also dismissed on 8-2-1982 and ultimately the suit was dismissed in default.
4. The petitioners filed an application to set aside the ex parte decree dated 9th July 1976 on 5-4-1982. The Judge, Small Causes Court rejected the said application on 30-3-1989. The petitioners filed revision before the District Judge against the said order which was dismissed on 25-3-1990. The petitioners filed Writ Petition No. 20988 of 1980 but the writ petition has yet not been admitted nor any stay order has been granted.
5. The decree-holder filed execution application for executing the decree. The petitioners filed an objection dated 23-10-89 under S. 47, C.P.C. on the ground that the ex parte decree was not in accordance with the provisions of 0. XX, R. 4, C.P.C. It is not a decree in the eye of law and, therefore, it is a nullity. This objection was dismissed by Judge, Small Causes Court on 1-3-93 and the revision preferred by the petitioner against the said order has been dismissed by respondent No. 1 on 2-11-1993. The petitioner ' has challenged these orders in the present writ petition.
6. Learned counsel for the petitioners contended that the decree passed by the Judge, Small Causes Court was a nullity. The court without framing points for determination in the suit, delivered the following judgment-on 9-7-76 which runs as follows:
"Case called out. Plaintiff is present. Defendant is absent. Proceed ex parte. Plaintiff examined himself as PW 1 and filed 6 papers.
Heard Order Suit for recovery of arrears of rent Rs.
94.60 and damages Rs. 50/- and for defendants ejectment from the house in suit is hereby decreed with costs ex parte. The defendant shall also pay pendente lite and future mesne profit at the rate of Rs. 4/- per month."
7. Learned counsel for the petitioner placed reliance upon the decision Rameshwar Dayal v. Banda (Dead) through his L.Rs., 1993 (1) ARC 249 : (1993 AIR SCW 594), wherein their Lordships of the Supreme Court held that it is obligatory for Judge, Small Causes Court to State points for determination and give its finding or decision on each of the said points, and if the decision of Small Causes Court is not in conformity with S. 2(2) of C.P.C., it is not a decree. Paragraphs 22 and 23 of the judgment are reproduced below:--
"22. "Points for determination" referred to in R. 4(1) are obviously nothing but "issues" contemplated by Rules 1 and 3 of Order XIV of the Code. The present decision of the Small Causes Court which has not even stated the points for determination and given finding thereon, is obviously not a judgment within the meaning of S. 2(9) of the Code. Since the matters were in controversy between the parties, it is only a judgment which could have given rise to a decree. The so-called decision of the Small Causes Court, therefore, does not amount to a decree within the meaning of S. 2(2) read with S. 2(9) and Rules 4(1) and 5 of O. XX of the Code.
23. It is not disputed that in view of the provisions of S. 17(1) of the Provincial Small Causes Court Act, the Code is applicable to Small Causes Court except where it is otherwise provided either by the Code or the said Act. Apart from Rules4(l) and 5 of O. XX of the Code, on this count also, it was obligatory for the Small Causes Court, in the present case, to state the points for deter mination and give its finding or decision on each of the said points. Hence the present decision of the Small Causes Court is not a judgment and a decree in the eye of law and is, therefore, non est as far as the respondent is concerned."
It is necessary to examine the facts of that case. A suit for arrears of rent and ejectment was filed against a tenant one Habib by the landlord. He had impleaded one Band a on the allegation that the tenant had sub-let to Banda. The suit was decreed against both. Banda filed application for setting aside the said decree. The application was dismissed and the revision filed by him was also dismissed. Banda filed suit on the basis of his title as owner of the property. In the suit he had claimed two reliefs namely, the decree passed by Small Causes Court against him was a nullity and secondly, an injunction restraining the plaintiff of that suit from dispossessing him from the property. The trial court had dismissed the suit on the finding that he failed to prove his ownership but the said finding was reversed by the lower appellate court and the judgment was affirmed in second appeal by the High Court. Their Lordships of the Supreme Court held that Banda had taken a plea in the written statement in the suit filed against him before the Judge, Small Causes Court that he was owner of the property. The Judge, Small Causes Court did not set out the points for determination and the question, as to whether Banda was owner of the property, was not decided. The decision of the Judge, Small Causes Court in that context, as against Banda, was held not a decree binding against him though it was binding against another defendant.
8. The Judge, Small Causes Court had not decided the controversy regarding ownership and title of the property of Banda and in that context the observations were made by their Lordships in that case. In the present case, the predecessors-in-interest of the plaintiff had even filed a Suit No. 678 of 1976 for declaration that the decree passed in Suit No:-508 of 1973 was void but ultimately the said suit stood dismissed.
9. The petitioners had not filed any revision against the decision of Judge, Small Causes Court dated 9-7-1976 before the District Judge under the provisions of Sec. 25 of Provincial Small Cause Courts Act. OrderXX, Rule4(l), C.P.C. provides that judgment of a Court of Small Causes need not contain more than the points for determination and the decision thereon. A judgment which is not in accordance with the provisions of O. XX, R. 4, Civil Procedure Code may be set aside in revision as the Judge, Small Causes Court must disclose the points for determination and decision thereon. This provision lays down the guideline for writing a judgment by a Judge, Small Causes Court. The decision of a Judge, Small Causes Court is subject to scrutiny by a court exercising the power of revision under S. 25 of Provincial Small Cause Courts Act.
10. The revisional court may set aside the decision of a Judge, Small Causes Court which is not in accordance with the provisions of O.XX, R.4, C.P.C. but such judgment cannot be said to be without jurisdiction and a nullity merely because the judgment is not in accordance with the provisions of O. XX, R. 4, C.P.C. There is a distinction between a decree which is a nullity and a decree which is not according to law. A decree is nullity when the court lacks inherent jurisdiction to pass a decree or it is against a dead person or passed against some substantive provisions of law which prohibits passing of a decree but a decree which is not according to law cannot itself be treated as a nullity. This is clear from the decision of the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. In Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199, their Lordships of the Supreme Court observed (at p. 200):--
"The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted, or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction."
11. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, AIR 1970 SC 1475, an objection was raised that the Judge, Small Causes Court had no jurisdiction to pass a decree for ejectment relating to agricultural land. The Supreme Court held that when the decree is made by a court which has no inherent jurisdiction to make it, the objection as to its validity may be raised in execution proceedings if the objection appears on the face of the record. But where the objection, as to jurisdiction of the court to pass a decree does not appear on the face of the record and requires examination of the question raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain the objection as to the validity of the decree even on the ground of absence of jurisdiction.
12. In Mool Chand v. Magan Lal, AIR 1965 MP 75, the Full Bench considered the question as to whether a decree can be treated as nullity inasmuch as the ward had been registered as required under Section 17(l)(b) of the Indian Registration Act and the executing court can ignore such a decree, it was held that the decree may not be in accordance with law yet it is binding and conclusive between the parties until it is set aside either in appeal or in revision and executing court has no power to refuse to execute the decree on the ground that it is not according to law.
13. Learned counsel for the petitioner placed reliance upon the decision Smt. Kau-shalya Devi v. K. L. Bansal, AIR 1970 SC 838. In this case a compromise was entered into between the parties and such compromise decree was sought to be executed. The Supreme Court held that the decree was passed on the basis of a compromise which was in contravention of Section 13(1) of the Act. In that case the decree was against the substantive provision of the Act. Their Lordships of the Supreme Court held that (at p. 839):
"On the plain wording of Section 13(1) the Court was forbidden to pass the decree. The decree is nullity and cannot be enforced in execution."
There is no provision under the Code of Civil Procedurs or the Provincial Small Cause Courts Act, 1887 that if a decree which is not in accordance with order XX, Rule 4 C.P.C. shall be treated as a nullity. In this case it is relevant to note that the petitioner had not filed any written statement in the suit. The case proceeded ex parte against him. The plaintiff examined himself and produced the papers. In these circumstances, there was no controversy raised before the Judge, Small Causes Court and the Judge, Small Causes Court had only to consider the case of the plaintiff and evidence produced by him. It was not a case where the judgment itself could have been treated as a nullity if the judgment was not written in accordance with the provisions of Order XX, Rule 4 C.P.C.
14. In view of the above, the present writ petition fails and is accordingly dismissed.
15. Petition dismissed.