Whether decree can be set aside in execution proceeding for error of procedure?

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4965 of 2008

Decided On: 12.06.2009

Smt. Savitribai A. Salvi
Vs.
Smt. Suman Navgire and Ors.

Hon’ble Judges/Coram: S.C. Dharmadhikari, J.

Citation: 2009 Bom Rent Cases 441

1. While issuing Notice on 13th January 2009 this Court directed that the matter would be listed for Final Disposal. Accordingly, by consent I have heard final arguments of parties. Hence, Rule. Respondent Nos. 1 and 2A to 2D waive service.

2. By this petition under Article 227 of the Constitution of India, the Petitioner challenges the order dated 12th June 2008 in Civil Appeal No. 586 of 2007. The learned Dist. Judge -12, Pune dismissed this appeal and confirmed the order of the Executing Court dated 16th August 2007 below Exh.37 in pending Darkhast No. 82 of 2000. This is the second time when the petitioner has approached this Court in writ jurisdiction.

3. The petitioner has suffered a Decree of Eviction in respect of an Immovable property and when the said decree was put in Execution by the Decree Holder/Respondents, he raised an objection to its enforceability and executability on the ground that the decree is null and void. That objection was overruled by the executing court and the appeal therefrom has also been dismissed. Consequently, this petition.

4. The opportunity to raise objections to the decree was given by an order of this Court dated 13th April 2007 in Civil Writ Petition No. 481 of 2007. The said order reads thus:

1. This Writ Petition filed under Article 227 of the Constitution arises from an interlocutory order passed by the learned Judge of the Second Small Causes Court at Pune on 2.8.2000. It appears that the possession warrant was issued in Darkhast No. 82 of 2000 and thereafter the present petitioners filed application at Exhibit-22 praying for stay to the execution proceedings. The said application has been rejected by the impugned order and on the ground that the total amount of Rs. 5,100/- was not deposited by the judgment debtor by 2.7.1999 or by 9.7.1999 as the case may be and even though in the application submitted on 9.7.1999, a weeks. time was prayed for to deposit the balance amount of Rs. 600/-, the amount was ultimately deposited on 20.7.1999. The court below therefore relied upon the decision in the case of Sonusingh v. Bansi Chindu 1994 Maharashtra Law Journal 1141 and rejected the application by the impugned order.

. The impugned order was initially challenged by filing a Civil Revision Application i.e. CRA No. 1103 of 2000 and on 21.11.2000 the impugned order was stayed. The CRA was dismissed on 7.12.2006 with an observation that the CRA was not maintainable against the impugned order and therefore it was disposed with liberty to take out appropriate proceedings and that is how this petition has been moved subsequently.

. The fact remains that the impugned order has remained stayed all along and there is no reason why the execution proceedings should not proceed further. At the same time it is not known whether the petitioners have remitted the rental amount during the last seven years or so and these are all the issues which the execution court can consider. Under these circumstances, there is no necessity to keep this petition pending any further.

. Hence, the Writ Petition is disposed off by directing the Darkhast No. 82 of 2000 to be heard and decided expeditiously. In case, the petitioners desire to apply for stay to the possession warrant, Such an application can be considered more appropriately by the executing court, if the same is filed within a period of one week from today and providing all the other details. Petition is disposed off accordingly..

5. Pursuant to the liberty granted to apply for stay of possession warrant, the petitioner who is one of the Judgment debtors along with others, filed written objections vide Exh.37. A copy of the same is annexed as Annexure F to this petition.

6. It was the case of the petitioner that the Civil Suit No. 644 of 1997 was filed on 20th September 1997 by respondent Nos. 1 and 2, seeking possession of one room more particularly described in para 1 of the plaint situate at village Warje (hereinafter referred to as suit premises). It is common ground that the suit was filed for recovery of possession and arrears of rent and it came to be filed in the Court of Small Causes. During the pendency of this suit, original defendant tenant expired and in his place heirs were brought on record. However, the heirs did not participate in the trial. After considering oral and documentary evidence led by respondent Nos. 1 and 2 ‘ original plaintiffs, the executing court passed a conditional decree against the heirs of the original tenant/ defendant directing them to deposit Rs. 5100/-within thirty days from the date of the order together with interest at the rate of 6% p.a. Upon default in depositing the amount within the stipulated time, eviction decree was to follow. The record indicates that the original Judgement Debtor failed to comply with the directions of the court and did not deposit the amount with interest within time. Therefore, the decree holders filed Execution Application on 28th February 2000. In the meantime, the Judgment debtors filed objections to the execution of the decree (Exh.22) praying for recalling the warrant of possession and staying the execution proceedings contending that they have deposited entire arrears of Rs. 4125/-in two installments dated 9th July 1999 and 20th July 1999 and thereby complied with the directions of the court. However, that application Exh.22 was dismissed by the learned Second Additional Judge, Small Causes Court, Pune by an order dated 2nd August 2000. It was this order which was challenged by filing a Civil Revision Application in this Court and the same was disposed of with the above directions.

7. In the fresh set of objections, apart from urging that the amount has been deposited, it was contended by the petitioner that the Small Causes Court was not empowered to entertain the suit filed by the original plaintiffs ‘ decree holders. It was contended that the plaintiffs were conscious of the position in law and had indeed averred in para 9 of the plaint that the Rent Control Act was not applicable to the suit premises. The suit had been filed invoking provisions of Transfer of Property Act, 1882. Various other objections were also raised in the objections filed on 19th April 2007. These objections were placed before the Executing Court and the Executing Court after hearing both sides held that it cannot go behind the decree. The suit was filed for recovery of rent and possession. The Rent Control Act was not applicable was the averment. The suit was contested by the original defendant but he passed away The legal representatives were brought on record but they were proceeded ex-parte. The Executing Court held that the objections raised now were was not raised during the course of trial. The decree is specific and conditional. The judgment debtor was directed to deposit the rent within the prescribed time and was aware of the consequences in default. No doubt, in operative para of the order, Section 12 of the Rent Control Act is mentioned, but that would not invalidate the decree. The Small Causes Court had jurisdiction to entertain and try the suit. In such circumstances, the objections were held to be untenable and came to be rejected. Aggrieved by the order of the executing court, an Appeal came to be preferred and by the impugned order the same has been dismissed.

8. These orders are under challenge in the instant petition.

9. Mr. Kulkarni, learned Counsel for the petitioner contended that the subject decree is a nullity. He submits that the attention of the Court below was invited to Section 26 of the Provincial Small Causes Court Act, 1887 and more particularly Sub-section 2 thereof. The Small Causes Court lacked inherent jurisdiction to entertain and try a suit pertaining to the premises to which the Rent control Act is applicable. The competent Court to take cognizance of and entertain to try the suits under Bombay Rent Control Act is the one specified by Section 28 thereof. The Court of Small Causes has no jurisdiction to entertain and try the suit. He contended that the decree mentions provisions of Rent Control Act and thus the executing court was aware of the fact that the Rent Control Act is applicable to the suit premises. In any event, the Rent Control Act became applicable during the pendency of the suit and once it became so applicable, then, the Small Causes Court could not have decreed the claim on the basis that the applicable law is the Transfer of Property Act. In such circumstances, the orders passed by the Court below are vitiated by an error apparent on the face of the record and, therefore, deserve to be quashed and set aside.

10. In support of his submissions and also while urging that these objections go to the root of the matter and the decree is a nullity, Mr. Kulkarni relies upon the following decisions:

(a) MANU/SC/3938/2007 : AIR2008SC187 (Carona Ltd. v. Parvathy Swaminathan & Sons)

(b) MANU/SC/0336/1961 : [1962]2SCR159 (Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subbash Chandra Yograj Sinha)

(c) MANU/SC/0316/1984 : [1985]2SCR202 (Lakshmi Narayan Guin and Ors. v. Niranjan Modak)

(d) MANU/MH/0175/2006 : 2006(4)BomCR55 (Shantabai Yashwant Kothare and Ors. v. Shankar Parshuram Naik (D) through L.rs.)

(e) A.I.R. 1984 Guj 182 (Govindbhai Parshottamdas Patel and Ors. v. New Shorrock Mills Nadiad)

(f) MANU/SC/0227/1963 : [1964]3SCR214 (Raizada Topandas v. Gorakhram Gokalchand)

(f) MANU/SC/0083/2003 : [2003]1SCR918 (Sarwan Kumar and Anr. v. Madan Lal Aggarwal)

(g) MANU/SC/0228/1991 : AIR1991SC993 (Isabella Johnson (Smt) v. M.A. Susai (D) by Lrs.)

(h) MANU/SC/0531/1970 : [1971]1SCR66 (Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors.)

11. On the other hand, Mr. Gupte learned Counsel appearing for the decree holders contended that the Provincial Small Causes Court Act was not lacking in inherent jurisdiction while it decreed the suit. He invited my attention to the fact that the Provincial Small Causes Court Act was competent under both enactments viz., Bombay Rent Control Act and Transfer of Property Act to entertain and try the suits for possession. In other words, wherever the Rent Control Legislation was applicable in terms of Section 28 thereof, competent court was the provincial small causes court. Thus, assuming without admitting that the Rent Control Act was applicable to the suit premises, the suit could have been laid in the Provincial Small Causes Court itself. Therefore, there is no substance in the objections in that behalf. He has invited my attention to para 26 of the order passed by the lower appellate court and also the order of this Court. He submits that these are only delaying tactics and the judgment debtors are not interested in handing over possession, despite the decree becoming final.

READ  Wife cannot claim maintenance under 125 CrPc and DV for same acts

12. Mr. Gupte has invited my attention to the earlier order i.e the order in W.P. No. 481 of 2007 and contended that assuming that the issue of jurisdiction of the trial court could have been raised in the execution proceedings, yet, that issue or point is not something which can be decided by referring to the decree. In other words, that is not an objection apparent on the face of the record. It is an objection which requires detailed investigation on facts. The Executing Court was called upon to go into the issue as to whether when the suit was instituted the Rent Control Act was applicable to the area where the suit premises are situated. Assuming further that the suit premises came within the Municipal limits/ Area and, therefore, Rent Control Legislation had become applicable thereto, even then, the Executing Court would have to go through the Relevant Notifications and construe them. They cannot be brought on record of the Executing Court by leading Oral and Documentary Evidence. That means an issue which could be tried as a jurisdictional issue during the course of trial would be required to be tried during Execution and that is not what is intended by the opportunity in Law to raise objections to the executability and enforceability of the decree. If the defect in the Decree is not apparent and it requires detailed investigation of facts, then, the Executing court was not obliged to take cognizance of this objection and it has been rightly overruled. This order being maintained by the lower appellate court means that it committed no error in law. Therefore, the orders passed by the court below are justified on facts and in law. They do not suffer from any Jurisdictional error nor vitiated otherwise so as to call for interference in this Court’ s limited jurisdiction under Article 227 of the Constitution of India. Hence the petition be dismissed.

13. With the able assistance of learned Counsel for parties I have perused the petition and the Annexures thereto including the Impugned orders. I have also perused the relevant decisions brought to my notice and the statutory provisions.

14. At the outset, it must be borne in mind that the jurisdiction under Section 47 of the C.P.C. conferred on the Executing court is limited and narrow. The liberty to object to the executability and enforceability of a decree by raising objections before the executing court, does not mean that the objector can re-open the matter and the proceedings. That is not intended by the Legislature. He is not permitted to urge such pleas and matters which would require reopening of the decree on concluded issues. In other words, this jurisdiction cannot be equated with that of an Appeal or Review. It being extremely limited and narrow, the objections must fall within the ambit and scope of the same. If they fall outside the purview of the said limited power, then, the executing court is not empowered to take note of them.

15. If any authority is needed for this purpose, then, a reference can usefully be made to a decision of the Supreme Court in the case of Dhurander Prasad Singh v. Jaiprakash reported in MANU/SC/0381/2001 : [2001]3SCR1129 . Therein, the Supreme Court observed that the powers of the Court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. Exercise of powers under Section 7 of the Code is microscopic and lies in a very narrow inspection hole.

16. Taking this view a little further, in a later decision of the Supreme Court reported in MANU/SC/0634/2003 : AIR2003SC3789 (Rafique Bibi (D) By L.rs. v. Sayed Waliuddin (D) by L.Rs. And Ors.), the Supreme Court held that when the objection is raised to the execution of the decree on the ground that it is passed without jurisdiction and is a nullity, then, that objection must be such as could be determined by looking at the decree itself. In other words, it must be patent on its face. In this context, this is what the Supreme Court observes:

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.

7. Two things must be clearly borne in mind. Firstly, the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be ‘ a nullity’ and ‘ void’ but these terms have no absolute sense; their meaning is relative, depending upon the Court’ s willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results. (Administrative Law, 8th Edn. 2000, Wade and Forsyth, P.308). Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. The order of a superior court such as the High Court, must always be obeyed, no matter what flaws it may be thought to contain. Thus a party who disobeys a High Court injunction is punishable for contempt of Court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time limit (Ibid. p.312)..

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 falling 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..

9. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. MANU/SC/0531/1970 : [1971]1SCR66 , it has been held:

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. But where the objection as to 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.
17. The controversy before me will have to be decided on the touch stone of these principles. When the matter was brought before this Court earlier, the aspect of the jurisdiction of the trial court to entertain and try the suit and pass a decree of eviction has not been specifically raised. From a reading of the order dated 13th April 2007, which is reproduced above, it is apparent to me that the only argument raised before this Court was that the precondition of deposit in the decree has been complied with and, therefore, the decree holders cannot dispossess the judgment debtors. In other words, the deposit of Rs. 5125/-being made within the time stipulated and permitted by the Court, no default arises and consequently there is no obligation to hand over possession. Hence, there is no question of executing the decree of the Trial Court. Therefore, no possession warrant can be issued. That was the only argument which was raised. While dealing with the same, this Court observed that the execution and enforcement of the decree had been stayed because a revision application challenging the order below Exh22 of the Executing Court was pending in this Court for nearly six and half years. In such circumstances and when the judgment debtors are contending that they have complied with the order of deposit, then, he must have an opportunity to make good that plea. That is how, executing court’ s earlier order was set aside and liberty was granted to the petitioners before me and respondent Nos. 3, 4 and 5 (all judgment debtors) to apply for stay of the possession warrant. Thus, there is no question of the court being called upon to decide all the objections that have been now raised before me.

18. That apart, in the application at Exh.37, the plea that the decree is a nullity is not raised in the manner now canvassed before me. A perusal of the entire application leaves me in no manner of doubt that the plea by Mr. Kulkarni as raised before me has no where been stated. All that has been urged is that because the decree makes a reference to Section 12 of the Bombay Rent Act and the area of Warje Gram Panchayat now being br0ught within the limits of Pune Municipal Corporation, the trial court does not have any jurisdiction to try the suit. The precise objection in that behalf reads thus:

READ  Smt. Veena Panda vs Devendra Kishore Panda(S.24)

3. These J.Ds. -L.rs. Of the original defendant herewith submit that the very suit as filed by the plaintiffs as without jurisdiction of the Hon’ ble Court at the time when the suit was filed and the Court of Small Causes, Pune was not entitled to entertain or decree the suit and as such the very institution of the suit before the Hon’ ble Court of Small Causes, Pune was not only illegal but furthermore the Court had no jurisdiction to entertain the suit. It is emphasised herewith that the plaintiffs were conscious of the said position of law and therefore had specifically so pleaded in the plaint in para (9) that the Rent Control Act was not applicable to the area of the suit property and in the circumstances the suit had been averred to have been filed under the provisions of the Transfer of Property Act. Such suit without the provisions of the Rent Control Act could not have been treated and cannot be treated to be any suit within the jurisdiction of the Hon’ ble Court under the provisions of the Bombay Rent Act as the said Bombay Rent Act or any Rent Control Legislation was not at all applicable to confer jurisdiction upon this Hon’ ble Court so as to have any decree by the Court of Small Causes with regard to possession against the present J.Ds. It is herewith submitted that during the life time of the late Arun the suit was not maintainable and on his demise the litigation legally and technically came to an end before the Court which had no jurisdiction in the matter of the said suit and as such by merely bringing the L.Rs. Of the late Arun, the present J.Ds. Cannot be clamped with the void and ultra-vires decree in the matter .In fact the void proceedings cannot be validated by bringing the J.Ds. On record as L.Rs. Of the late Arun and in the circumstances the alleged decree under execution is ab-initio void as the same is superimposed on the void proceedings initiated without jurisdiction to the Hon’ ble Court and cannot be ended in any kind of valid or executable decree in the matter and the decree therefore, is ultra- vires and inexecutable and the same cannot be executed against the J.Ds. In any way..

5. The very decree is making a reference to the claim for possession as being decreed under Section 12 of the Bombay Rent Act and atleast when the very suit was not under the provisions of the Bombay Rent Act. Further the absence of jurisdiction to the Hon’ ble Court in the original suit cannot be regarded to be retrospectively conferred upon the Hon’ ble Court so as to have any jurisdiction to pass the decree in a suit not instituted under the provisions of the Bombay Rent Act and in the circumstances the very decree is suffering from inherent lack of jurisdiction..

6. It is herewith submitted that any incorporation of the area of Warje Grampanchayat within the limits of the Pune Municipal Corporation after 11-9-1997 does not confer any jurisdiction to this Hohn’ ble Court to validate the suit which was without jurisdiction so as to have the decree being imposed against the present J.Ds..

19. Hence, I am of the view that any objection on the ground that the Rent Control Legislation has become applicable and, therefore, the decree is vitiated by lack of Inherent jurisdiction and is thus a nullity, cannot be raised in this writ petition before me for the first time That objection being not raised specifically, the executing court was under no obligation to consider it, nor was the lower appellate court in any error in upholding the conclusion of the executing court in that behalf.

20. However, since elaborate arguments have been permitted on this aspect by the lower appellate court and with a view not to non-suit the petitioner only on this ground, I have heard Mr. Kulkarni extensively. The argument is that the Rent Control Legislation became applicable during the pendency of the suit, and, therefore, the decree passed in a suit instituted by invoking the General Law i.e. Transfer of Property Act,is without jurisdiction and a nullity. In this behalf one would have to take note of the fact that the suit was laid against the sole defendant. The sole defendant, expired during the pendency thereof. He had contested the suit by filing written statement and raising all objections including that of jurisdiction. Upon his death his heirs were brought on record but they did not choose to participate in the proceedingsin spite of notice and the suit proceeded in their absence. The matter thus, proceeded ex-parte.

21. Now, in execution, the heirs are urging that the decree is a nullity being passed by a Court having no jurisdiction. First of all, applying Supreme Court’ s decision and the principle therein, the heirs are challenging the decree on jurisdictional issue which could have been made the subject matter of adjudication during the course of trial. It is not something which could be decided on the basis that it is apparent on the face of the decree. It requires elaborate and in depth investigation of factual matters.

22. It is not as if the plea of nullity can be answered without any reference to the factual materials. It is not as if that when the suit was filed, the aspect that the Trial court lacked jurisdiction, if raised was purely a Legal issue. The decree holders in their plaint had averred specifically that the suit premises are not covered by the Rent Control Legislation and the same is inapplicable thereto. The ordinary and general law of the land i.e. Transfer of Property Act would apply to the relationship and, therefore, they have filed a suit in the Provincial Small Causes Court by invoking section 26(1) of the Provincial Small Causes Court Act. The argument is that after the suit was instituted Warje village became part of the Pune Municipal Limits and, therefore, Bombay Rent Control Act became applicable to the suit premises. Therefore, when the suit was filed Bombay Rent Act was not applicagble. Whether the alleged applicability later on vitiates the decree is a matter which cannot be decided on the face of the decree. There is substance in the contention of Mr. Gupte that this is something which would require leading of evidence by the judgment debtors and placing on record relevant materials. That would require their stepping into witness box. If all this had to be permitted during the course of these proceedings, then, the very purpose and object of conferring limited powers on the executing court would be defeated. That would make mockery of Rule of Law also. The Court at all costs must discourage delaying tactics by litigants who have suffered adverse orders and decrees or else they will never be executed and enforced against them. It is precisely this aspect which has resulted in people losing faith in the Judiciary and legal system. The delay in execution of a favourable order results in parties resorting to other methods. That should never be the net result. Hence, such dilatory tactics must be discouraged. Therefore, I am of the view that the executing court was right in rejecting the objection that the of decree is a nullity as it is passed by a Court lacking inherent jurisdiction.

23. That apart, as observed by the lower appellate court, this is not a case where the executing court lacked inherent jurisdiction. When relationship is of landlord and tenant but the Rent Control Legislation was inapplicable to the premises even then, the suit had to be filed in the Court of small causes and it was so filed. Assuming Rent Control Legislation was applicable the suit still could have been filed in the Small Causes Court, considering language of Section 26(2) of the Provincial Small Causes Court Act and Section 28 of the Bombay Rent Act. Therefore, this is not a case where the Court lacked inherent jurisdiction as contended by Mr. Kulkarni. At the most, what could be said is that the Trial Court erroneously exercised the jurisdiction. The Court gave opportunity to the judgment debtor to continue in possession if he clears all the arrears of rent and in default of the same, he was to suffer the consequences i.e. Eviction from the premises. It is not as if the Trial court has denied him any opportunity to make payment of the arrears. By applying the principles enshrined in Rent Control Legislation, it gave him that opportunity. Merely because the order was passed ex-parte or by strictly not adopting the mode prescribed in the Rent Control Act and more particularly Section 12 of the same does not mean that the Decree is a nullity. At the most it is an erroneous or irregular or illegal decree. That distinction in law must be maintained. An erroneous or an illegal decree can be set aside only if party aggrieved by it invokes the remedies prescribed in law to impugn and challenge it. If it does not do so, then, in execution proceedings, the decree cannot be set aside on the ground of any illegality or it being vitiated by errors of procedure. Therefore, there is no merit in the argument of Mr. Kulkarni that the executing court lacked inherent jurisdiction to entertain and try the suit and hence, the decree is a nullity. The objections in that behalf have been rightly over-ruled and the concurrent orders and do not suffer from any error apparent or perversity so as to call for interference in writ jurisdiction.

READ  Whether it is necessary to prove fact which is admitted by other party?

24. Further objection was that the decree stipulated payment of money in court within a prescribed time and that condition has been complied with and, therefore, possession warrant could not have been issued. Even this aspect has been gone into elaborately by the court below. The Courts below have adverted to the factual aspects and have pointed out that the amount was to be deposited within the time stipulated. However, the judgment debtors deposited Rs. 5100 by way of two installments but failed to deposit interest thereon as directed by the trial court. In the order passed by the executing court, it has observed that the deposit was not made within time. On the own showing of the petitioner, the amount directed to be deposited by the trial court was deposited in two installments i.e. on 9th July 1999 and 20th July 1999. There is no dispute that the amount was not deposited within the stipulated time. Hence, when the condition of deposit in the decree having not been complied with admittedly, the executing court could not have granted any benefit to the Petitioner/ Judgement Debtor. There is no question of the Executing Court extending the time for deposit. The Executing Court had to go by the decree and when it found that the condition of deposit has not been complied with within the time stipulated, then, it had no alternative but to give effect to the consequences of default and issue the warrant of possession. It rightly issued that and even the factual finding against the petitioner on this count requires no interference in writ jurisdiction.

25. The decisions brought to my notice by Mr. Kulkarni, are obviously distinguishable. In the case of Carona Ltd. v. Parvathy Swaminathan & Sons reported in MANU/SC/3938/2007 : AIR2008SC187 , The appellant ‘ tenant before the Supreme Court challenged the decree of eviction against him, tenant which came to be confirmed by this Court. The argument before the Supreme Court was that the suit filed by the respondent landlord was not maintainable. That was on the basis that the paid up share capital was not what was stipulated by Section 3(1)(b) of the Maharashtra Rent Control Act, 1999. It is during the consideration of this issue and the other submissions that the Supreme Court has observed that a jurisdictional fact has to be decided before the Tribunal or the Court can assume jurisdiction. Further observations that there is a difference between ‘ jurisdictional facts’ and ‘ Adjudicatory facts’ have been made in that context. At the same time, the Court made further observations that it is very difficult to draw this distinction but it cannot be overlooked. How this decision is of any assistance at this stage is not clear to me at all.

26. The other decision cited before me is with regard to landlords’ right to recover possession. Now with regard to the applicability of Section 12 of the Bombay Rent Act, there cannot be any dispute but the question is whether the decree passed in the instant case can be set aside by the executing court on the ground that are urged by the petitioner. I have already held that the petitioner is questioning and challenging the decree as if it is erroneous and illegal but that was not permissible to be done before the Executing Court. Hence, the decision on this point is also of no assistance.

27. Similarly, the decision of the learned Single Judge (K.J.Rohee, J, as he then was) in Shantabai Kothare’ s case reported in MANU/MH/0175/2006 : 2006(4)BomCR55 which has been relied upon would also go to show that the observations have been made by this Court in the context of the challenge to the decree. That was a second appeal and while holding that the decree could not have been passed by the civil court as the suit was composite in nature, that the observations relied upon by Mr. Kulkarni have been made. Once again, they have no application to the case before me.

28. The decision that was heavily relied upon by Mr. Kulkarni is the one in Sarwan Kumar and Anr. v. Madanlal Aggarwal MANU/SC/0083/2003 : [2003]1SCR918 . It will be necessary to note the factual position before the Supreme Court. The factual position was that the property in question was in the State of Delhi. The decree for ejectment was passed by a civil court qua a commercial tenancy in the State of Delhi, before declaration of law by the Supreme Court in Gian Devi Anand v. Jeevan Kumar MANU/SC/0381/1985 : AIR1985SC796 . Before the Supreme Court it was emphasised that the decree holder filed suit for possession and mesne profits against the judgment debtors in the Dist.Court Delhi. The property was let out for commercial purpose. It was alleged that the tenancy in favour of the judgment debtors was not heritable. However, they did not contest the suit and ex parte decree of possession and recovery of mesne profits was passed against them. The Decree was passed by a civil court.

29. When the decree holder put this decree in execution, the judgment debtors filed an application for setting aside the ex-parte decree. However, that application was dismissed by the trial court and the judgment was upheld right upto the Supreme Court.

30. It is in such circumstances that the judgment debtors objected to the Execution of the decree by contending that commercial tenancy in the State of Delhi was heritable in view of the law laid down by the Supreme Court in the case of Gian Devi (supra) and, therefore, the civil court lacked inherent jurisdiction to pass such a decree. That objection has been upheld by the Supreme Court on the basis that the law laid down by it in the case of Gian Devi (supra), always held the field and there was no question of it not operating when the subject suit was decreed. It held that there was nothing in the decision (Gian Devi) which would not make it applicable to cases prior to the said decision being rendered. That would not be a proper and correct reading of the decision is the conclusion and that is how the objections of the judgment debtors were upheld by the Supreme Court in the matter before it.

31. Once again, I fail to see as to how these observations could be of any assistance to Mr. Kulkarni. Firstly, before the Supreme Court, the issue of Lack of Inherent Jurisdiction was not required to be adjudicated. That was apparent and could have been determined by perusing the decree itself. The legal position that commercial tenancy was heritable is undisputed. The issue really was whether the law laid down in Gian Devi v. Jeevani Kumar was applicable to earlier decrees i.e. Prior to 1985. The Civil Court lacked Inherent Jurisdiction was not in dispute at all. In the matter before me such is not a case because the small causes court did not lack inherent jurisdiction under either of the Statutes as far as the subject suit is concerned. It was competent under Section 26(1) and it was also competent to take cognizance of Rent Control Matters by virtue of Section 28 of the Bombay Rent Act, is the conclusion. In such circumstances, the Court had competence and at the most, decree was erroneous. That decree could have been challenged by filing an appeal which was not done and, therefore, it binds the judgment debtors. Thus, this decision also is of no assistance to petitioner.

32. In my view, the case of the petitioner is fully covered by the decision reported in MANU/SC/0531/1970 : [1971]1SCR66 (V.C. Modi v. Rajabhai A. Rehman and Ors.). The relevant observations have already been reproduced by me.

33. In my view, therefore, the petitioner cannot be heard to say that the decree passed against her as well as other judgment debtors is a nullity. Once this view is taken, then, it is not necessary to refer to other decisions relied upon by Mr. Kulkarni. Apart from the same, they pertain to the ambit and scope of Section 28 of the Bombay Rent Act which is not a matter that can be raised at this stage. Hence, the orders under challenge do not suffer from any error apparent nor perversity so as to call for interference in my Discretionary and Equitable so also Supervisory Jurisdiction under Article 227 of the Constitution of India.

34. As a result of the above discussion, the petition fails and is accordingly dismissed. Rule is discharged but without costs.

35. At this state Mr. Kulkarni appearing for the petitioner prays that some time be granted to the petitioner to vacate the premises. Mr. Gupte appearing for decree holders submits that the decree is passed in the year 1998 and, therefore, grant of any longer time is likely to prejudice the decree holders.

36. Having heard learned Counsel for both parties on this point, I am of the view that in the facts peculiar to this case, interest of justice would be sub-served if time to vacate is granted till 30th June 2010. However, it is directed that the petitioner who is in possession of the premises and her family members should execute an undertaking in this Court that they would hand over vacant and peaceful possession of the premises and would not seek any extension for vacating the suit premises. They will also state in the undertaking that they will not create any third party rights or alienate or encumber or part with possession of the suit premises to any third party. They shall pay usual outgoings in respect of the premises. Undertaking is to be filed within four weeks from today. Needless to state that if the undertaking is not filed within the stipulated period, the decree shall become executable and enforceable without reference to this Court.

Leave a Comment

Your email address will not be published. Required fields are marked *