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Ahmed Khan Vs. Mohamad Khasim Sab - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberExecution Second Appeal No. 91 of 1973
Judge
Reported inAIR1976Kant13; 1975(2)KarLJ241
ActsCode of Civil Procedure (CPC), 1908 - Sections 47; Evidence Act, 1872 - Sections 115
AppellantAhmed Khan
RespondentMohamad Khasim Sab
Appellant AdvocateR.N. Byra Reddy and ;Sreerangaiah, Advs.
Respondent AdvocateM.S. Gopal, Adv.
Excerpt:
.....it in the earlier litigation, he cannot question the legality of the decree at the stage of execution. the schedule in the execution application as well as the schedule in the decree described the suit schedule site as situated in anehalli village within the municipal limits by the side of b......for declaration of title, for recovery of arrears of rent and for possession of the suit schedule site described as site no. 1 in sy. no. 38 of anehalli inam village situated within the municipal limits of bhadravathi town the suit was dismissed by the trial court. the plaintiff's appeal was allowed by the first appellate court in r. a. no. 140 of 65 on the file of the additional civil judge, shimoga. thereafter the respondent took out the present execution petition. the appellant contended that the decree obtained by the respondent is a nullity on the ground that the munsiff court, bhadravathi, did not have jurisdiction to pass a decree for eviction, since the subject-matter of the suit was governed by the provisions of the mysore house rent, control act, 1961. the.....
Judgment:

1. The respondent-decree-holder filed the suit, O. S. No. 317 of 1964 against the appellant-judgment-debtor for declaration of title, for recovery of arrears of rent and for possession of the suit schedule site described as Site No. 1 in Sy. No. 38 of Anehalli Inam Village situated within the municipal limits of Bhadravathi Town The suit was dismissed by the trial court. The plaintiff's appeal was allowed by the first appellate court in R. A. No. 140 of 65 on the file of the Additional Civil Judge, Shimoga. Thereafter the respondent took out the present execution petition. The appellant contended that the decree obtained by the respondent is a nullity on the ground that the Munsiff Court, Bhadravathi, did not have jurisdiction to pass a decree for eviction, since the subject-matter of the suit was governed by the provisions of the Mysore House Rent, Control Act, 1961. The execution court held that the Rent Control Act applied to the subject-matter of the suit, but that since the judgment-debtor did not raise the plea with regard to lack of jurisdiction in, the suit it is not open to him to raise it in the present execution proceeding. The lower appellate Court held that there is no proof that the Mysore Rent Control Act is applicable to the site in question and that the decree cannot be said to be a nullity. It accordingly overruled the objections of the judgment-debtor and ordered the execution to proceed. It is against this order, that the present appeal has been filed by the judgment-debtor.

2. In Kiran Singh, v. Chaman Paswan : [1955]1SCR117 , it has been observed as follows:-

'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 whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of Jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.'

3. In Hira Lal Patni v. Sri Kali Nath : [1962]2SCR747 , it has been held:

'The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizing of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed: or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it.'

4. The principle laid down by the Privy Council in (1886) 13 Ind App 134 - that consent or waiver can cure defect of jurisdiction but cannot cure inherent lac of jurisdiction was proved. That was a case where objection was taken during the execution proceedings relating to territorial jurisdiction. It was held that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case, that 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. It was held that the conduct of the defendant estopped him from challenging the territorial jurisdiction of the Bombay High Court to entertain the suit and to make a reference to the arbitrator and that he was equally estopped from challenging the authority of the arbitrator to render the award.

5. In Chandrika Misir v. Bhaiyalal : [1974]1SCR290 , it is held that, though the plea with regard to lack of jurisdiction had not been raised in the trial court, since it was a question relating to inherent lack of jurisdiction of the Court, such a plea may be raised at any stage and even in execution, proceedings on the ground that the decree was a nullity. The jurisdiction of the Civil Courts was taken away in respect of a suit for ejectment of persons occupying land without title, under Section 209 of U. P. Act No. 1 of 1951. Section 209 related to suits for ejectment of persons occupying land without title where the land formed part of the holding of a bhoomidar. According to the finding of the lower Court, the defendant in that case was retaining passion of the land contrary to law, the land was bhoomidari land and the plaintiffs bhoomidars. In the appeal by Special Leave against the judgment of the High Court in second appeal. the Supreme Court held that since the Civil Court which entertained the suit suffers from an inherent lack of jurisdiction the decree dismissing the suit must be confirmed though the High Court had dismissed the suit on the ground of limitation.

6. Mr. Byra Reddy relied on the decision in H. V. Rajan v. C. N. Gopal, 1960 Mys L.J 106 = (AIR 1961 Mys 29) wherein it has been held that under Section 8 of the Mysore Rent Control Act, 1951 no tenant can be evicted whether in execution of a decree or otherwise, notwithstanding anything contained in any agreement or law to the contrary, excepting in accordance with the provisions of that Section or Section 7 (3) of the same Act and that a landlord who seeks to evict a tenant in possession, will have to apply to the court as defined in Section 2 (2) of the Act.

In Bipathumma v. Hariam Bibi (1966) 1 Mys LJ 162, it has been held that the principal mandate of Section 21 of the Mysore Rent Control Act, 1961 is in the form of prohibition towards the Court against making any order or decree for recovery of possession.

He next relied on the decision in State of Madras v. Charles Harold Simpson : (1974)2MLJ122 . In that case the objection taken to the execution of the decree related to the pecuniary jurisdiction of the Court which passed the decree. The observations in : [1962]2SCR747 , were referred to and it was held that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of the Court to try a case, that the competence of a Court to try the case goes to the very root of the jurisdiction, and where it is lacking it is a case of inherent lack of jurisdiction.

He next relied on the decision in Adapa Gopala Rao v. Bandaru Kabbaiah (1975) 1 Andh WR 60, in which it has been held that in the case of inherent jurisdiction the lack of it goes to the root of the competence of the Court to try such a case and renders the decree a nullity. A decree which is a nullity is void and can be declared to be void by every Court in which it is presented. The executing Court can therefore, entertain an objection that a decree is a nullity and, can refuse to execute the decree. Only in such a case there is really no going behind the decree for there is really no decree at all in the eye of law.

On the basis of these decisions, it is urged by him that the judgment-debtor is entitled to take the plea by way of objections in the execution proceedings as to lack of inherent jurisdiction of the, Court which passed the decree and that the executing Court is entitled to investigate into the merits of such a contention and determine the question as to the jurisdiction of the Court which passed the decree.

7. It is urged by Mr. Gopal that the suit was not merely for eviction of the judgment-debtor but also one for declaration of title and that in any case the decree passed in the suit cannot be said to be one passed by a Court without jurisdiction. But the objection raised by the judgment-debtor is with regard to the decree being a nullity in so far as it directs eviction. Hence, it is open to the executing Court to refuse to execute the decree in so far as it relates to eviction if the decree appears on the face of the record to be without jurisdiction.

8. It is contended on the other hand, by Mr. Gopal, that since the appellant did not take the plea with regard to lack of jurisdiction in the original suit it is not open to him to urge the same in the execution proceeding and that it is beyond the scope of the executing Court to investigate and determine the question of jurisdiction, of the Court which passed the decree. He has relied on the decision in Vasudeva. Danjibhai Modi v. Rajabhai Abdul Redman : [1971]1SCR66 . In that case a decree for ejectment of a lessee was passed by the Court of Small Causes exercising the power vested in it by the Bombay Rents. Hotel and Lodging House Rates (Control) Act (57 of 1947). Under the said Act the Court exercising power under that Act has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Also, in ascertaining whether the land demised is used for agricultural purposes the crucial date is the date on which the right conferred by the Act is sought to be exercised. The trial Court dismissed the suit on merits. The decree was reversed by the first appellate Court and that decree was confirmed by the High Court. No objection was raised before the Court of Small Causes that the Court had no jurisdiction to entertain the suit nor was it raised in the first appeal or before the High Court. The objection was raised for the first time when the decree was sought to be executed. The Court executing the decree rejected the contention. The Appeal against that order was also unsuccessful. But in a petition under Article 227 of the Constitution, the High Court reversed the order of the Court of Small Causes and ordered that the petition for execution be dismissed. The High Court was of the view that the land leased was on the date of the lease used for agricultural purposes and that it so appeared on an investigation of the terms of the lease and other relevant evidence. The scope of an enquiry by the Court executing the decree as to the question of jurisdiction of the Court which passed the decree was stated as follows-

'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.

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 mss 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.'

And further,

'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 II 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.'

Since the High Court had determined that the Court of Small Causes had no jurisdiction to pass the decree on the basis of an investigation of the terms of the lease and other relevant evidence, the order of the High Court was set aside and it was held that it had exceeded the powers of a Court executing the decree in entering into an investigation on facts in order to determine whether the Court which has passed the decree had no jurisdiction to entertain and try the suit.

9. In Bherusingh v. Ramgopal : AIR1972MP217 it is held that

'If the decree is patently illegal, the executing Court may refuse to execute it. But if the alleged illegality is arguable and the judgment-debtor has failed to raise it in the earlier litigation, he cannot question the legality of the decree at the stage of execution.'

10. It is clear therefore, that the executing Court cannot hold an investigation in order to determine whether the Court which -passed the decree lacked jurisdiction to do so.

11. It is next contended by Sri Byra Reddy, that according to the admission made by the decree-holder in the execution Court, the admission being one on a question of fact binding on the decree-holder, the Court which passed the decree had jurisdiction to pass it and therefore the decree-holder could not take a contrary stand before the lower appellate Court and that he is estopped from doing so. He relied on the decision in Ulichi Kotayya v. Nallamalli Sreeramulu : AIR1928Mad900 . Thimmalapalli Virabhadra Rao v. Sokalchand Chunilal : AIR1951Mad796 and Sunder Parmanand Lalwani v. Caltex (India) Ltd. : AIR1969Bom24 which lay down the principle that an admission made by the party or his counsel on a question of fact is binding on him. In State of Mysore v. B. Chikkavenkatappa, (1965) 1 Mys LJ 26 = (AIR 1965 Mays 253), it has been held that a concession made by a counsel on behalf of his party on a question of law will not stop him or his client from with drawing from such concession at a later stage of the same proceeding or in appeal, or revision there from.

12. The admission relied on by the appellant is contained in the order of the executing Court and is in the following words -

'It is not denied by the learned counsel for the decree-holder that the schedule site is situated within the municipal limits of Bhadravathi. It is not denied by the decree-holder that the suit schedule site is by the side of B. H. Road within the limits of old Town Municipality Bhadravati There is no dispute that Mysore Rent Control Act, '1961 was applicable to the lease of houses and sites situated in Municipal limits of Bhadravathi Town -as on the date of filing of the suit ......... Hence it cannot be disputed that the lease in respect of the suit schedule site was covered under the Mysore Rent Control Act 1961 when the above suit was filed.'

Under Section 2. Clause (3) of the Mysore Rent Control Act, 1961, Parts IV and, V of this Act are made applicable to the areas specified is Schedule II, The relevant entry in Schedule II reads as follows:

'61. Bhadravati Old Town and Bhadravati New Board, area excluding New Town and Paper Town.'

The admission of the learned counsel for the decree-holder in the execution Court contained in the first two sentences in the statement referred to above is to the effect that the suit schedule site is within the municipal limits of Old Town Bhadravathi or within the limits of the Old Town Municipality of Bhadravathi. This is an admission on a question of fact and is binding on the decree-holder. But this admission is only to the effect that the suit schedule site is within the municipal limits of Bliadravati Old Town Municipality. In Schedule II of the Act, the areas of several towns have been referred to as the 'Municipal Borough'. the 'Municipal District' or the 'Municipality' of the Town concerned. But the term 'Municipality' is significantly absent with regard to Bhadravati. The Act has been made applicable to the Bhadravati Old Town and a Portion of Bhadravati New Board area. It is the contention of Mr, Gopal appearing for the respondent-decree-holder that the municipal limits of Bhadravati Old Town including villages which do not form part of Bhadraviati Old Town Municipality is much larger in extent than the area comprised in Bhadravati Old Town only. On a reading of the above entries in Schedule II it cannot be said, that the said contention is without basis. The schedule in the execution application as well as the schedule in the decree described the suit schedule site as situated in Anehalli village within the municipal limits by the side of B. M Road Bhadravati. Its boundaries are also given, The mere fact that the description of the suit schedule site is admitted to be within the municipal limits of Bhadravati Old Town will not, therefore, amount to an admission that the suit schedule site is within the limits of Bhadravati Old Town itself. It cannot therefore, be said that it is apparent on the face of the record that the Court which Passed the decree had no Jurisdiction to pass the decree.

13. Reliance is next placed on the admission contained in the third sentence referred to above to the effect that there is no dispute with regard to the applicability of the Rent Control Act to sites situated within the Municipal limits of Bhadravati Town. If this admission were, binding on the decree-holder, it would be an admission to the effect that the Court who passed the decree had no inherent jurisdiction to pass it. But it is contended by Mr. Goal that this, admission is only with regard to the interpretation of the relevant entry in Schedule II of the Act, and that the said admission was made under a, miss-apprehension of the position in law as to the interpretation of the said entry in Schedule II This contention has to be accepted. The admission amounts to an admission on a question of law, the decree-holder, therefore. Is not stopped from saving that the suit schedule site has not been shown to be within the limits of Bhadravati Old Town and that the Act is not applicable to the said site. It was, therefore, open to the decree holder to Lake the contention as he did in the lower appellate Court that the House Rent Control Act did not apply to the suit schedule site. The lower appellate Court was therefore justified in coining to the conclusion that it is not apparent on the face of the record that the Court who passed the decree for eviction lacked inherent jurisdiction to pass the decree

14. This appeal, therefore, is dismissed with costs.

15. Appeal dismissed.


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