This petition, at the instance of the plaintiff-decree holder, seeks the quashing of the judgment and order dated 7th August, 2008 by which the Revision filed by the judgment debtors was allowed and the order dated 17th May, 2008 passed by the Executing Court was set aside with a direction to the Executing Court to decide the objections filed by the judgment debtors afresh in the light of the observations made in the body of the judgment. The Executing Court had, by the order dated 17th May, 2008, rejected the objections filed by the judgment debtors under Section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') in Execution Case No.1 of 1988.
The plaintiff, as owner and landlord of the open piece of land, instituted Original Suit No.48 of 1981 for ejectment of defendant no.1 or any other person found to be in possession of the plot of land and for recovery of arrears of rent with the allegation that in terms of the deed dated 7th January, 1978, the plot of land had been let out to defendant no.1-Sayeeduddin for a period of one year; that the defendant no.1 did not give possession of the plot of land on the expiry of the period of lease and nor did he pay the rent; that on the other hand, defendant no.1 illegality executed a sale deed dated 20th February, 1979 in favour of defendant no.2-Masroor and defendant no.3-Leela treating himself to be owner of the plot of land; that defendant nos.2 and 3 also executed a sale deed in favour of defendant no.4-Israr Khan on 17th March, 1980; that the plaintiff had never executed any document in favour of defendant no.1; that the aforesaid sale deeds are illegal and void and plaintiff continues to be the owner and landlord of the plot of land and that by the notice dated 13th July, 1979 the plaintiff informed defendant no.1 that the tenancy of defendant no.1 would stand terminated on the expiry of the period mentioned in the notice and defendant no.1 was called upon to pay the arrears of rent but the defendants did not vacate the land and nor was the arrears of rent paid to the plaintiff.
A written statement was filed by defendant no.1-Sayeeduddin. It was asserted that the plaintiff had executed a registered sale deed in favour of the answering defendant on 17th February, 1979 as a result of which the answering defendant became the owner of the plot of land; that there was, therefore, no relationship of the landlord and tenant between the parties and the question of determination of the tenancy did not arise. A separate written statement was also filed by defendant nos.2 to 4. It was asserted that a sale deed had been executed by the plaintiff in favour of defendant no.1 and defendant no.1 thereafter executed a sale deed in favour of defendant nos. 2 and 3, who also executed a sale deed in favour of defendant no.4 subsequently.
After filing of the written statements, the defendants did not appear to contest the suit and an order was passed by the Court on 10th September, 1985 for proceeding ex-parte against the defendants. The plaintiff examined himself as P.W.-1 and supported the averments made in the plaint. He also proved the rent deed (Exhibit-1) and the notice served on the defendant (Exhibit-3). The suit was decreed by the Trial Court on 9th December, 1985 and defendants were directed to give possession of the plot of land to the plaintiff within a period of one month.
Defendant no.1-Sayeeduddin alone moved an application for setting aside the ex-parte decree. This application (Paper No.3-C) was accompanied by an application (Paper No.4-C) under section 5 of the Limitation Act for condoning the delay in filing the application. The Court by the order dated 16th September, 1991 rejected application 4-C filed under section 5 of the Limitation Act and, accordingly, application 3-C filed for setting aside the ex-parte decree was also rejected.
The order dated 16th September, 1991 passed on application 4-C was assailed by defendant no.1 by filing Civil Revision No.177 of 1991 and the order dated 16th September, 1991 passed on application 3-C was challenged by means of Misc. Civil Appeal No.130 of 1991. Civil Revision No.177 of 1991 and Misc. Civil Appeal No.130 of 1991 were dismissed by a common judgment and order dated 7th September, 1992.
Defendant no.1-Sayeeduddin filed Writ Petition No.32728 of 1992 for setting aside the aforesaid order. During the pendency of the writ petition, defendant no.1-Sayeeduddin died on 6th June, 1998. The Writ Petition was ultimately dismissed by the judgment and order dated 25th February, 2008 which is quoted below :-
"Heard learned counsel for the petitioner, learned Standing Counsel and respondent no.3.
The private respondents filed Suit No.48 of 1981 against the petitioner and his alleged transferees for eviction and possession of the disputed property together with rent and damages. The suit was found inter alia, on the ground that the petitioner was a tenant at Rs.50/- per three months for a period of one year from 1.1.1978 to 31.12.1978 and in spite of the expiry of the period he neither vacated the premises nor upon notice has removed his constructions standing thereon and illegally had executed sale deeds of the disputed premises to defendant nos. 2 to 4 on 17.2.1979 and 20.2.1979. The petitioner filed his written statement denying the allegations. However, he absented from the proceedings and an order was passed on 10.9.1985 to proceed ex parte whereafter the suit was decreed vide order and judgment dated 9.12.1985 directing his eviction, payment of cost and damages. The petitioner thereafter moved an application dated 13.3.1986 under Order 9 Rule 13 for setting aside the ex parte judgment and decree and also an application under Section 5 of the Limitation Act explaining the delay. The trial court came to the conclusion that there was no sufficient explanation for the delay, rejected both the applications. The petitioner thereafter preferred Civil Revision No.177 of 1991 against the order rejecting the delay condonation application and civil appeal no.130 of 1991 against the ex parte judgment and decree. Both were decided by a common judgment dated 7.9.1992 rejecting the appeal and the revision after recording categorical findings and also holding that assuming that the petitioner came to know about the ex parte decree on 19.2.1986, there was no sufficient explanation for filing the application under Order 9 Rule 13 and the delay condonation application on 19.3.1986. Both the aforesaid orders are impugned in the present petition.
Entertaining this petition, notices were issued to respondent nos. 3 to 6 on 16.9.1992. However, even after expiry of about more than 11 years no steps were taken to effect service on respondent nos. 3 to 6 and as such the writ petition was dismissed under the High Court Rules against respondent nos. 3 to 6 vide order dated 7.1.2004. When the petition was taken up again on 14.12.2004, none appeared on behalf of the petitioner to press this petition and accordingly it was dismissed for non prosecution and the interim order was vacated. Thereafter an application dated 16.8.2005 was filed for recall of the order dated 7.1.2004 and for condoning the delay in filing the application. A detailed order was passed by the Court on 5.5.2006 taking notice of the aforesaid facts and dismissing it on the ground that none appeared to press the application. However, a fresh application no.169894 of 2007 was filed for recall of the order dated 14.2.2004 and 5.5.2006 and the aforesaid orders were recalled.
Now a fresh application no.32112 of 2008 has been filed stating that after dismissal of the writ petition executing proceedings have been initiated and therefore the execution of the decree may be stayed. However, till date neither the order dated 7.1.2004 has been recalled nor any application has been made for bringing on record the heirs of the sole deceased petitioner who admittedly expired on 6.6.1998 and no counter affidavit to an abatement application dated 17.8.2004 being numbered as 154629 of 2004 filed in the court on 19.8.2004 has been filed. The suit was decreed with a direction for payment of damages to the tune of Rs.200/- per year till the date of possession and the writ petition was dismissed in December, 2004 but there is nothing on record to show that the amounts are being deposited in pursuance of the decree which adversely reflects upon the bona fide of the petitioner.
Considering the entire aforesaid facts, the court is not inclined to grant further indulgence to the applicants who have enjoyed the interim order for the last about 15 years and their conduct is far from bonafide. Rejected."
In the meantime, the plaintiff-decree holder put the decree dated 9th December, 1985 into execution which case was registered as Execution Case No.1 of 1988. In the said Execution Case, the heirs and legal representatives of the deceased defendant no.1-Sayeeduddin (respondent nos. 1 to 11 in this petition) alone filed objections under Section 47, CPC on 1st May, 2008 which case was registered as Misc. Case No.12 of 2008. Defendant nos. 2, 3 and 4 did not file objections in the Execution Case. In the objections filed by the heirs and legal representatives of defendant no.1, it was stated that the plaintiff-Abdul Ajiz had executed a registered sale deed dated 17th February, 1979 in favour of defendant no.1; that Original Suit No.48 of 1981 was filed by the plaintiff-Ghani on 13th March, 1981; that defendant no.1-Sayeeduddin subsequently sold the plot of land to Masroor and Leela (defendant nos. 2 and 3) by a registered sale deed who also executed a sale deed in favour of Israr Khan-defendant no.4; that defendant no.1-Sayeeduddin filed a written statement and defendant nos. 2 to 4 also filed a separate written statement; that the plaintiff-Ghani was aware at the time of the filing of the suit that he had executed a sale deed in favour of Sayeeduddin; that the suit was decreed ex-parte but it was not adjudicated that the plaintiff-Ghani had sold the property to Sayeeduddin and Sayeeduddin had also subsequently sold it; that the plaintiff had played fraud upon the Court for which proceedings are pending in the High Court; that since the plaintiff had no right over the disputed plot of land at the time of filing of the suit, he had no right to obtain the decree and, therefore, the decree is unenforceable, null and void and of no benefit to the plaintiff-Ghani; that defendant nos. 2 to 4, therefore, cannot be ejected pursuant to such a decree; that the decree holder is not entitled to any relief in view of the provisions of Section 115 of the Evidence Act and Section 111 of the Transfer of Property Act and that in such circumstances, it does not matter whether the ex-parte decree passed in Original Suit No.48 of 1981 was challenged or not.
A reply to the aforesaid objections was filed by the decree holder on 8th May, 2008. Bilal Ahmad, one of the heirs and legal representatives of the deceased defendant no.1-Sayeeduddin, also filed Original Suit No.143 of 2008 for declaring the decree dated 9th December, 1985 passed in Original Suit No.48 of 1981 as null and void. This suit is pending and no injunction has been granted.
The Executing Court rejected the objections filed by the judgment debtors by the order dated 17th May, 2008 for the reason that the Executing Court cannot go behind the decree and it cannot be said that the decree was null and void.
Feeling aggrieved, the heirs and legal representatives of Sayeeduddin filed Civil Revision No.130 of 2008 which has been allowed by the judgment and order dated 7th August, 2008 for the following reasons :-
"I am unable to accept the arguments raised by the learned counsel for the respondents. Admittedly in objections under Section 47 C.P.C. all questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree can be determined by the court executing the decree. In the present case the objectors have challenged the execution of the decree. It is an admitted legal position that an executing court cannot go behind the decree until and unless the decree is nullity. The main thrust of the revisionists are that the decree passed by the Court is a nullity. This legal position is also admitted to the counsel for the respondents that in case the decree is nullity then the executing court can look into it. Now the Court has to see whether decree passed by the Court is a nullity or not. The trial court has also accepted this legal position but discarded the arguments of the objectors on the ground that the execution of the sale deed before filing of the suit is a question of fact and can only be seen by the court which passed the decree and it cannot be looked into in objection under Section 47 C.P.C. or at the time of execution. In my opinion the court has not taken into consideration the fact of execution of sale deed even before filing of the suit and the effect of Section 111 of the Transfer of Property Act which clearly provides that a lease will come to an end in the case where the rights of lessor and lessee vests in one person. After the execution of sale deed in favour of the tenant by the landlord the relationship of landlord and tenant came to an end and the status of the tenant has changed. The trial court has not considered this aspect of the case. This view is also fortified by a decision of Hon'ble Supreme Court passed in 2000 AIR page 116 Imambi Vs. Azeeza Bee. In that case also the portion of tenanted property was sold to the tenant and then Hon'ble Apex Court opined that the status of tenant ceases to be such and tenant become co-owner of the land. In the present case also the similar situation exists. The landlord sold the tenantable accommodation to the tenant and after the execution of the sale deed the position of the tenant has completely changed. Much emphasis has been laid that the plaintiff landlord has challenged the execution of sale deed and has denied such execution in both the suits i.e. O.S. No.180 of 1980 and O.S. No.48 of 1981. The earlier suit was dismissed as not pressed and in the subsequent suit inspite of the contention of the defendants that sale deed has been executed in his favour the court passed the decree in favour of the landlord. I am unable to accept this contention. Admittedly the sale deed has not been cancelled by any competent court of law being an registered instrument it is binding on the parties. Mere allegation of its denial is not sufficient. Further from the judgment of the court below passed in O.S. No. 48 of 1981 it is clear that the court has no where touched this point. The learned trial court has also failed to consider the effect of the sale deed and the status of landlord and tenant. The lower court also failed to appreciate that when the relationship of landlord and tenant no longer in existence, then the court has no jurisdiction to entertain a suit for rent and ejectment and thus the court was lacking inherent jurisdiction while deciding the suit. All these questions should have been taken one by one and should have been decided by the court and over all effect of these questions upon the execution of the decree should be determined. The respondent has cited bundles of decisions, but in all these decisions only this much is established that execution court cannot go behind the decree unless the decree is a nullity. The counsel has conceded this point if the decree has been passed by the court lacking inherent jurisdiction then the decree will be a nullity and in the present case the executing Court has to see whether by the execution of the sale deed what will be its effect on the status of the parties and whether the court trying the suit (has) inherent jurisdiction to decide the same or not. From the perusal of the impugned order passed by the lower court shows that the court has not considered all these legal aspects and as such the order passed by the Court below cannot be sustained and is liable to be set aside and the revision deserves to be allowed."
(emphasis supplied) Sri M.A. Qadeer, learned Senior Counsel for the petitioner submitted that :-
(1) The Revisional Court committed an illegality and exceeded its jurisdiction in allowing the Revision.
(2) The Revisional Court completely failed to consider the scope of Section 47, CPC and also failed to appreciate that the Executing Court cannot go behind the decree.
(3) The ex-parte decree cannot be said to be a nullity and nor can it be said that the Court did not have the jurisdiction to pass the decree.
(4) The lack of jurisdiction in the Court passing the decree must be patent on its face but if it requires examination of questions raised and decided at the Trial, then the Executing Court will have no jurisdiction to entertain the objection regarding the validity of the decree even on the ground of absence of jurisdiction.
(5) Defendant no. 1 and defendant nos. 2 to 4 had taken a plea in their written statements that the plaintiff had executed the sale deed in favour of defendant no.1 who subsequently executed a sale deed in favour of defendant nos. 2 and 3 who also executed a sale deed in favour of defendant no.4, but the suit was decreed and, therefore, the said objections cannot be raised by the heirs of defendant no.1 in the execution proceedings.
(6) A pre-decree agreement cannot be set up in execution proceedings under Section 47, CPC in view of the Division Bench judgment of this Court in Krishna Raj Trading Corporation Vs. Ram Saran Dass & Brothers reported in 1962 ALJ 442.
(7) Even otherwise, defendant no.1 had executed a sale deed in favour of defendant nos. 2 and 3 and, therefore, the heirs and legal representatives of defendant no.1 do not have a locus standi to file objections under Section 47, CPC.
(8) The decree had become final between parties as no appeal was filed and only an application for setting aside the ex-parte decree was filed by defendant no.1 but it was dismissed and the dismissal order attained finality since Writ Petition filed in the High Court was also dismissed on 25th February, 2008.
Sri M.K. Gupta, learned counsel appearing for the respondents, however, submitted that :
(1) Though it is correct that the Executing Court cannot go behind the decree, but in the instant case the Trial Court lacked the inherent jurisdiction since the plaintiff had sold the property to defendant no.1 and in terms of Section 111 (d) of the Transfer of Property Act, the lease came to an end by operation of law. This fact touches the jurisdiction of the Court and if this was not determined by the Trial Court, then the Executing Court can determine it since it relates to the jurisdiction of the Court.
(2) Under section 111 (d) of the Transfer of Property Act, the lease of immovable property determines in case the interest of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right and, therefore, when the sale deed was executed by the lessor in favour of the lessee on 17th February, 1979, the tenancy of defendant no.1 stood determined and the suit for ejectment on the basis of the said tenancy could not have been filed and the heirs of defendant no.1 can raise such an objection in the Execution Case. In support of this contention, he has placed reliance upon the decision of the Supreme Court in Imambi Vs. Azeeza Bee reported in JT 2000 (9) SC 562.
(3) The objections raised by the judgment debtors relate to the execution of the decree and, therefore, can be taken by the judgment debtors in execution proceedings.
(4) The plaintiff had executed a registered sale deed in favour of defendant no.1 on 17th February, 1979 and so long as the registered sale deed is not set aside, it remains valid and binds the parties. In this connection, he has placed reliance upon the decision of the Supreme Court in Smt. Ramti Devi Vs. Union of India, JT 1995 (1) SC 223.
(5) The plaintiff had earlier filed Original Suit No.180 of 1980 which was withdrawn on 3rd October, 1981. In the suit the plaintiff could have challenged the sale deeds relied upon by the defendants but that was not done and, therefore, the sale deeds cannot be challenged in view of section 2(2) read with Order 2 Rule 2 and Order 23 Rule 2 CPC.
(6) A perusal of the judgment of the Trial Court shows that there was no adjudication to determine the right of the parties and, therefore, it does not amount to a decree under section 2(2) CPC. In this connection, he has placed reliance upon the decision of the Supreme Court in Rameshwar Dayal Vs. Banda (dead) through his L.Rs. & Anr. 1993 (1) ARC 249 (SC).
(7) The decision in the case of Krishna Raj Trading Corporation (supra) does not apply to the facts of the case. In this connection he has placed reliance on the provisions of Order 21 Rules 1, 2 and 2-A, CPC.
(8) In any case, no interference is called for in the writ petition for as the Revisional Court has only remanded the matter to the Executing Court.
I have considered the submissions advanced by the learned counsel for the parties.
The main issue that arises for consideration in this petition is whether the decree passed by the Court of Small Causes is a nullity and, therefore, cannot be executed or the decree is merely illegal and, therefore, cannot be objected to in execution proceedings.
A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree which is merely illegal or not passed in accordance with the procedure laid down by law. A decree is without jurisdiction, void and non-est if the Court lacks the inherent jurisdiction in passing the decree. All irregular or wrong decrees are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected to in execution proceedings and the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a Superior Court.
What is seen from the pleadings of the parties is that the plaintiff, as owner and landlord of the open piece of land, had instituted Original Suit No.48 of 1981 for ejectment of the defendants and for recovery of arrears of rent. It needs to be mentioned that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 does not apply to open piece of land and the suits in respect of the open piece of land are excepted from the cognizance of a Court of Small Causes under the Second Schedule to the Provincial Small Cause Courts Act, 1887.
It is, however, contended by Sri M.K. Gupta, learned counsel appearing for the respondents that the Court lacked jurisdiction since the plaintiff sold the property to defendant no.1-Sayeeduddin and in terms of the section 111 (d) of the Transfer of Property Act, the lease came to an end by operation of law. It is, therefore, his submission that the Revisional Court committed no illegality in remanding the matter to the Executing Court to examine this issue since it touches the jurisdiction of the Court and if this fact was not determined by the Trial Court, then the Executing Court can determine it. Elaborating his submission, he has pointed out that under section 111(d) of the Transfer of Property Act, the lease of immovable property determines in case the interest of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right and, therefore, when the sale deed was executed by the lessor in favour of the lessee on 17th February, 1979, the tenancy of defendant no.1 stood determined and the suit for ejectment on the basis of the said tenancy could not have been instituted and so the decree passed by the Court is a nullity. Such objections, according to the learned counsel for the respondents, relate to the execution of the decree and, therefore, can be taken by the judgment debtors in execution proceedings. His contention is that so long as the sale deed is not set aside by a Court of competent jurisdiction, it remains valid and binds the parties.
In this connection, learned counsel for the respondent has placed reliance upon the following passage of the Supreme Court in Smt. Ramti Devi (supra) :-
"............Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties............"
Learned counsel for the respondents has also placed reliance upon the following passage of the Supreme Court in Imambi vs Azeeza Bee (supra):-
"5. Thus, only question which arises for our consideration is, whether status of a tenant would continue to be so even after an agreement of sale is executed by such tenant with the landlord in respect of the same tenanted premises. Having heard learned counsel for the parties, we find the matter is covered by the decision of this Court. The status of such tenant, after execution of the said agreement of sale ceases to be such which is changed to that of a purchaser and when a sale deed is executed, as in this case of the half share of the said property, such tenant becomes co-owner with the landlord. This Court held to the similar effect in Abdul Alin Vs. Sheikh Jamal-Uddin Ansari & Ors. 1999 (1) Scale 175."
It is the contention of Sri M.A. Qadeer, learned Senior Counsel appearing for the petitioner that the suit was instituted in the Court of competent jurisdiction and it cannot be urged that the Court lacked inherent jurisdiction. It is his submission that even if the decree was erroneous and was not passed in accordance with the procedure prescribed under the C.P.C., then too the remedy of the defendants was to have filed an appeal for setting aside the ex-parte decree. It is also his submission that the contention advanced by the learned counsel for the judgment debtors regarding lack of jurisdiction of the Court requires determination of fact as to whether the relationship of lessor and lessee existed between the parties and, therefore, the decree is not a nullity and it is not open to the judgment debtors to raise this objection in execution proceedings. Learned counsel for the petitioner has also placed reliance upon the Division Bench judgment of this Court in Krishna Raj Trading Corporation (supra) in support of his submission that a pre-decree agreement cannot be set up in execution proceedings under Section 47, CPC and the observations are :-
"12. The terms of Section 47, C.P.C. appear to us to be clear and unambiguous. Only questions relating to the execution, satisfaction and discharge of a decree can be raised under that section. It is well settled that except in certain exceptional circumstances e.g., when the decree is a nullity or patently without jurisdiction, it is not open to the Court to go behind the decree and to question its validity. Nor can the executing Court say that the decree should have been passed in a way different from the way in which it has actually been passed and then proceed to execute it as if it had been passed in that other manner. If, therefore, a decree is clear and unconditional the executing Court cannot on any basis make the decree conditional or hold that it was not intended to be executed in certain circumstances because of an agreement arrived at before the decree was passed. If there was such an agreement the only thing which the parties could do was to bring forward that agreement at the time when the decree was being passed and to have it incorporated in the decree. That not having been done the agreement, if any, must be deemed to have been superseded by the decree and the decree must be given effect in preference to the alleged agreement. Having failed to put forward the agreement at the time when the decree was being passed (for the omission the judgment-debtor could only blame itself) it was no longer open to it to put forward the agreement at the time of execution and to say that the agreement should be honoured and the decree should not be executed on that basis. Setting up of such a pre-decree agreement in the execution department is, it appears to us, not permissible under Section 47, C.P.C."
To examine the contentions advanced by learned counsel for the parties, it will be useful to refer to certain decisions of the Supreme Court wherein distinction between a decree which is a nullity and a decree which is merely illegal has been drawn.
In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. AIR 1970 SC 1475, the judgment debtors raised objections in execution proceedings that the Court of Small Causes had no jurisdiction to entertain the suit since the suit premises were not covered by the Bombay Rents Hotel & Lodging House Rent (Control) Act 57 of 1947 and its decree for this reason was a nullity. The Supreme Court noticed that no objection was raised that the Court had no jurisdiction to entertain the suit either before the Court of Small Causes or in an appeal or before the High Court and the objection was raised for the first time when the decree was sought to be executed. It is in this context that the Supreme Court observed that where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions 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 objection to the validity of the decree even on the ground of absence of jurisdiction. The Supreme Court, after noticing that the question whether the Court of Small Causes had the jurisdiction to entertain the suit depended on the interpretation of the terms of the lease agreement and the user to which the land was put to on the date of grant of lease, observed that where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, objection cannot be raised in execution proceedings and it is only when the decree is on the face of the record without jurisdiction that objection to the jurisdiction of the Court to make the decree can be raised in execution proceedings. Thus, the view of the High Court that there was lack of inherent jurisdiction in the Court and the decree was without jurisdiction since the land leased was used for agricultural purpose in view of the lease deed and other relevant evidence, was not accepted. The observations of the Supreme Court are as follows :-
"2. In the meanwhile Modi applied for execution of the decree for ejectment against Munshi. Munshi raised the contention that the Court of Small Causes had no jurisdiction to entertain the suit and its decree was on that account a nullity. According to Munshi the suit premises were not governed by the Bombay Rents Hotel & Lodging House Rates (Control) Act 57 of 1947, and that in any event Parts II & III of that Act did not apply to open land and on that account the decree of the High Court confirming the decree of the District Court was without jurisdiction. The Court executing the decree rejected the contention. An appeal against that order to a Bench of the Court of Small Causes was also unsuccessful.
3. But in a petition under Article 227 of the Constitution moved by Munshi the High Court of Gujarat (that High Court having, by virtue of the provisions of the Bombay Reorganisation Act, 1960, acquired jurisdiction to deal with and dispose of the case) reversed the order of the Court of Small Causes and ordered that the petition for execution be dismissed. With special leave, Modi has appealed to this Court.
4. The expression "premises" in Section 5(8) of the Bombay Rents Hotel & Lodging House Rates (Control) Act 57 of 1947 does not include premises used for agricultural purposes. By Section 6 of that Act the provisions of Part II which relate to conditions in which orders in ejectment may be made against tenants and other related matters apply to premises let for education, business, trade or storage. It is plain that the Court exercising power under the Bombay Rents Hotel & Lodging House Rates (Control) Act, 1947, has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Again in ascertaining whether the land demised is used for agricultural purposes, the crucial date is date on which line right conferred by the Act is sought to be exercised : Mst. Subhadra v. Narasaji Chenaji Marwadi AIR 1966 SC 806.
5. In this case the suit for ejectment against Munshi was instituted by Modi in the Court of Small Causes. No objection was raised that the Court had no jurisdiction to entertain the suit. The objection was not raised even in appeal, nor before the High Court. The Trial Court dismissed the suit on merits : the decree was reversed by the District Court and that decree was confirmed by the High Court. The objection was raised for the first time when the decree was sought to be executed.
6. A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. Where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions 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 an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri and Anr. v. Rabindra Nath Chakravarti L.R. 60 Ind App 71 (AIR 1933 PC 61) the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction.
8. In the present case the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree. If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.
9. The High Court was of the view that where there is lack of inherent jurisdiction in the Court which passed the decree, the executing Court must refuse to execute it on the ground that the decree is a nullity. But, in our judgment, for the purpose of determining whether the Court which passed the decree had jurisdiction to try the suit, it is necessary to determine facts on the decision of which the question depends, and the objection does not appear on the face of the record, the executing Court cannot enter upon and enquiry into those facts. In the view of the High Court since the land leased was at the date of the lease used for agricultural purposes and that it so appeared on investigation of the terms of the lease and other relevant evidence, it was open to the Court to hold that the decree was without jurisdiction and on that account a nullity. The view taken by the High Court, in our judgment, cannot be sustained."
(emphasis supplied) The Supreme Court in Rafique Bibi (D) by Lrs. Vs. Sayed Waliuddin (D) by Lrs. and Ors. AIR 2003 SC 3789 also examined what is understood by a "void" decree. The Supreme Court observed that a decree can be said to be without jurisdiction, and hence a nullity if the Court passing the decree has usurped the jurisdiction which it did not have, but the lack of jurisdiction in the Court passing the decree must be patent on its face, else the normal rule that an Executing Court cannot go behind the decree must prevail. It was further observed that if the challenge to the decree seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an 'illegal decree', then that in itself will not result in the decree being termed as "without jurisdiction" or "a nullity". The observations of the Supreme Court are :-
"6. What is 'void' has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has usurped a jurisdiction which it did not have, a mere wrong exercise of jurisdiction does not result in nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such nullity based on want of jurisdiction; else the normal rule, that an executing Court cannot go behind the decree must prevail.
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8. A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.
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10. It is not the plea of the judgment debtors-appellants that the Court which passed the decree did not have the jurisdiction to do so. It is also not their case that a ground for eviction of the tenants on the ground of default in payment of arrears of rent was not available to the landlords-respondents within the meaning of the Delhi and Ajmer Act or the successor Rajasthan Act. The only submission made is that before passing the decree the Court should have afforded the tenant an opportunity of depositing the rent in arrears, which was not done. Firstly, we find merit in the submission of the learned counsel for the respondents that it was for the tenants to have invited the attention of the Court by making an application in that regard so as to avail an opportunity of wiping out the effect of their default, which gave rise to cause of action to the respondents, by depositing the rent during the pendency of the suit. That having not been done, the tenants-appellants cannot be heard to urge any infirmity in the decree. Secondly, accepting it at its face value, in the eyes of law, the challenge seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an 'illegal decree', but that in itself would not amount to branding the decree as 'without jurisdiction' or 'a nullity'. The plea which is sought to be urged in the execution proceedings was available to be raised by the tenants before the High Court in an appeal against the decree. Such a plea was not taken before the parsing of the decree and cannot now be allowed to be urged during the execution proceedings. It is unfortunate that a decree of eviction passed in a suit commenced in the year 1956 and culminating into a final decree in the year 1986 is still starving for its execution."
(emphasis supplied) The aforesaid observations of the Supreme Court were reiterated by the Supreme Court in Balvant N. Viswamitra and Ors. Vs. Yadav Sadashiv Mule (dead) through Lrs. and Ors. (2004) 8 SCC 706 and the observations are :-
"9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null' and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.
10. Five decades ago, in Kiran Singh and Ors. v. Chaman Paswan and Ors., (1955) 1 SCR 117 this Court declared;
"It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up wherever and whenever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction ....... strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties."(emphasis supplied)
11. The said principle was reiterated by this Court in Hiralal Patni v. Kali Nath, (1962) 2 SCR 747. The Court said:
"Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction."
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15. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings.
16. More than a century ago, in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa and Anr., ILR 25 Bom 337 (PC), the executing court wrongly held that a particular person represented the estate of the deceased judgment-debtor and put the property for sale in execution. Drawing the distinction between absence of jurisdiction and wrong exercise thereof the Privy Council observed:
"He contended that he was not the right person, but the Court, having received his protest, decided that he was the right person, and so proceeded with the execution. In so doing the court was exercising its jurisdiction. It made a sad mistake, it is true; but a court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision however wrong, cannot be disturbed."
17. In Ittavira Mathai v. Varkey Varkey and Anr., (1964) 1 SCR 495, this Court stated :
"If the suit was barred by time and yet the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject-matter of the suit and over parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do ..... If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity. (emphasis supplied)
18. Again, in Bhawarlal v. Universal Heavy Mechanical Lifting Enterprises, AIR 1999 SC 246, this Court held that :
"Even if the decree was passed beyond the period of limitation, it would be an error of law, or at the highest, a wrong decision which can be corrected in appellate proceedings and not by the executing court which was bound by such decree."
19. As already stated hereinabove, proceedings were initiated against the heirs and legal representatives of deceased Papamiya and a decree was passed by competent court having jurisdiction over the subject-matter of the suit. From the record, it is clear that the plaintiffs tried their best to get the names, addresses and other information regarding heirs and legal representatives of Papamiya. For the said purpose, notices were sent to heirs and legal representatives of the deceased by registered post which had come back. A notice under certificate of posting did not come back. A notice was, therefore, affixed on the suit premises. An attempt was also made to get names and addresses of heirs of the deceased Ahmed who was said to be staying at Bhandup, but no such information was received by the plaintiffs. From the record, it is also clear that defendants were aware of the proceedings and they had engaged Mr. G.R. Singh, advocate who was appearing in the matter. On 25th March, 1980, he was present when plaintiff No. 2 was examined on oath and was partly cross-examined by Mr. Singh. Thereafter, with the permission of the court, Mr. Singh withdrew his appearance because he had no instructions in the matter from the defendants and a decree was passed.
20. In our considered opinion, such a decree, by no stretch of imagination, can be described nullity. If the decree is not null and void, as per settled law, appropriate proceedings will have to be taken by the persons aggrieved by such decree."
(emphasis supplied) What follows from the aforesaid decisions of the Supreme Court is that the competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. A decree is then said to be a nullity and objection to its validity can be raised in execution proceedings if the objection about lack of jurisdiction appears on the face of the record. However, if the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the Trial Court for the purpose of determining whether the Court which passed the decree had the jurisdiction to pass such a decree, the Executing Court cannot enter upon an inquiry into this fact as it cannot go behind the decree. A decree suffering from illegality or irregularity of procedure cannot be termed inexecutable by the Executing Court and the remedy of a person aggrieved by such a decree is to have it set aside by a Superior Court. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings. A distinction has to be drawn between the absence of jurisdiction and wrong exercise thereof and in the case of wrong exercise of jurisdiction, the remedy is to take recourse for setting aside the order. If the party aggrieved does not take appropriate steps to have the error corrected, the erroneous decree will hold good and cannot be challenged on the basis of being a nullity.
Thus, as was also observed by Karnataka High Court in D. Narayana Gowda and Ors. v. I.N. Krishna Madystha, AIR 1976 Karnataka 56, the Executing Court cannot investigate facts to determine whether the relationship of the landlord and tenant existed between the parties at the time the suit was instituted in order to determine whether the Court which passed the order had the jurisdiction to do so. The relevant observations of the Karnataka High Court are :-
9. Hence, in the present case, it is not open to the executing Court to hold an investigation and determine whether the relationship of landlord and tenant existed between the parties to the H. R. C. proceedings as contended on behalf of the judgment-debtor. ................
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15. It is, therefore, clear that the executing Court cannot investigate into facts to determine whether the relationship of landlord and tenant existed between the parties at the time the H. R. C. Court entertained the landlord's petition and passed the order of eviction in order to determine whether the Court which passed the order of eviction had the jurisdiction to do so.
(emphasis supplied) What is contended by the judgment debtors in this petition is that since the defendant-lessee had purchased the property from the plaintiff-lessor by a registered sale deed dated 17th February, 1979, the tenancy of defendant no.1 stood terminated in terms of Section 111 (d) of the Transfer of Property Act and the suit for ejectment on the basis of the said tenancy could not have been filed as a result the decree is without jurisdiction and a nullity.
The plaintiff had clearly denied the execution of any sale deed in favour of the defendant and it was asserted that the alleged sale deed is illegal and void and the plaintiff continues to be the owner and landlord of plot of land. Written statements were filed by the defendants but after the filling of the written statements, the defendants did not appear to contest the suit and an order was passed by the Court on 10th September, 1985 to proceed ex-parte against the defendants. The plaintiff examined himself as P.W.-1 and supported the averments made in the plaint. He also proved the rent deed and the notice served on the defendants for terminating the tenancy. The suit was decreed ex parte by the Trial Court on 9th December, 1985 and the defendants were directed to give possession of the plot of land to the plaintiff within a period of one month. The defendants did not challenge the decree in appeal. Only defendant no.1-Sayeeduddin moved an application for setting aside the ex-parte decree but this application was rejected. Civil Appeal and the Writ Petition filed by defendant no.1 were also dismissed. The decree holder put the decree into execution and it is in the execution proceedings that the heirs and legal representatives of defendant no.1-Sayeeduddin filed objections under section 47, CPC with the assertion that the decree was a nullity. It was not the case of the judgment debtors before the Executing Court that the Court which passed the decree did not have the competence to try the suit for ejectment from the open piece of land but what was asserted before the Executing Court was that the Trial Court did not decide that the plaintiff had no right over the disputed plot of land at the time of filing of the suit since he had sold it to defendant no.1 and, therefore, the decree was unenforceable, null and void. The Executing Court had rejected the objections filed by the judgment debtors under section 47, CPC for the reason that the Executing Court could not go behind the decree and the decree was not a nullity. Thus, it is not a case where the Court lacked inherent jurisdiction to try the suit but this is a case where the judgment debtors contend that from examination of the facts it will transpire that the Court did not have the jurisdiction to try the suit. In effect, the Court will have to examine whether the alleged sale deed relied upon by the defendants was null and void or whether the ownership of the plot stood transferred to the defendants. The Revisional Court has placed emphasis on the fact that the Executing Court had not considered that the sale deed had been executed by the plaintiff in favour of defendant no.1 prior to the filing of the suit and the effect of section 111(d) of the Transfer of Property Act and it is for this reason that the Revision has been allowed and the matter has been remitted to the Executing Court to decide it afresh in the light of the observations made in the judgment. This, as noticed hereinabove, cannot be examined by the Executing court in view of the decisions of the Supreme Court in Vasudev Dhanjibhai Modi (supra), Rafique Bibi (supra) and Balvant N. Viswamitra (supra) and the decision of the Karnataka High Court in D. Narayana Gowda (supra).
It has, therefore, to be held that the decree is not a nullity.
It is also contended by learned counsel for the respondents that there was no adjudication to determine the rights of the parties and, therefore, it is not a decree contemplated under Section 2(2) CPC and in this connection, reliance has been placed upon the observations of the Supreme Court in Rameshwar Dayal (supra).
A perusal of the aforesaid judgment shows that the suit filed by the appellant Rameshwar Dayal for eviction of Habib and the sub tenant Banda in the Court was decreed by the Court of Small Causes and the decree became final. Banda, however, filed a suit on the basis of his title as owner of the property which had given rise to the appeal before the Supreme Court. The relief claimed by Banda in the suit was for declaring the decree passed by the Court of Small Causes to be a nullity and for an injunction restraining Rameshwar Dayal from dispossessing him from the property. The Second Appeal filed by the defendant was dismissed by the High Court. It was sought to be urged that the bar of res judicata would apply. It is in this context that the Supreme Court held that the Court of Small Causes had even incidentally not decided the issue with regard to the title which fell for determination directly and substantially in the subsequent suit. The Supreme Court also observed that the question of title in SCC suit can be regarded as incidental only to the substantial issue and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised. The Court then examined whether the decision of the Court of Small Causes was binding on Banda who was a sub tenant of Habib and in this context it was observed that the decision of the Court of Small Causes is not a judgment in eye of law and, therefore, non est so far as Banda is concerned.
The decision in Rameshwar Dayal (supra) does not help the judgment debtors. The issues were raised by Banda not in execution proceedings but Banda had filed a separate suit for a declaration that the decree passed by the Court of Small Causes is a nullity and for an injunction restraining Rameshwar Dayal from dispossessing him from the property.
The last contention of the learned counsel for the respondents is that the Court should not interfere in the matter since the Revisional Court has only remitted the matter to the Executing Court to decide it a fresh in the light of the observations made in the judgment.
It is not possible to accept this contention of the leaned counsel for the respondents. As noticed above, the Revisional Court committed an illegality in holding that the Executing Court should have taken into consideration the execution of the sale deed and the effect of section 111 of the Transfer of Property Act while deciding the objections filed by the judgment debtors, because such factors were not required to be taken into consideration. No purpose will be served by requiring the Executing Court to decide the matter afresh.
Thus, for all the reasons stated above, the judgment and order dated 7th August, 2008 of the Revisional Court cannot be sustained. It is, accordingly, set aside. The Executing Court shall now proceed with the Execution Case, as expeditiously as is possible, since the decree holder has yet to reap the fruits of the decree passed in 1985. The writ petition is, accordingly, allowed.
Date:23.02.2012 SK