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Ahmedabad Municipal Corporation Vs. Joitaram Ganesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR431
AppellantAhmedabad Municipal Corporation
RespondentJoitaram Ganesh and anr.
Cases ReferredNanalal v. Ambalal
Excerpt:
- - on the expiry of the said period till 31st march 1959, it was clearly provided in clause 4, that possession could be obtained by the corporation even by executing this decree. it is well-settled that the only objection that can be raised before the executing court is as regards the decree being a nullity in the true sense and not the objection as regards its invalidity. at page 342, their lordships indicated the general well-established principle 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. their lordships, however, added that it is a general principle to which there are well-recognized.....j.b. mehta, j.1. this appeal is directed against the decision of our learned brother raju, j. in second appeal no. 380 of 1962 by which our learned brother reversed the decrees of the two lower courts on the ground that the decree in question was a nullity which could not be executed. the short facts which have given rise to this appeal are as under:2. it appears that the appellant-municipal corporation of the city of ahmedabad (hereinafter referred to as 'the corporation') had obtained a decree from the mamlatdar's court for possession of the two plots nos. 769 and 772 situated in the city of ahmedabad from the defendants who were tenants in respect of those two plots. the respondents thereafter filed a suit for injunction in the civil court for restraining the corporation from taking.....
Judgment:

J.B. Mehta, J.

1. This appeal is directed against the decision of our learned brother Raju, J. in Second Appeal No. 380 of 1962 by which our learned brother reversed the decrees of the two lower Courts on the ground that the decree in question was a nullity which could not be executed. The short facts which have given rise to this appeal are as under:

2. It appears that the appellant-Municipal Corporation of the City of Ahmedabad (hereinafter referred to as 'the Corporation') had obtained a decree from the Mamlatdar's Court for possession of the two plots Nos. 769 and 772 situated in the City of Ahmedabad from the defendants who were tenants in respect of those two plots. The respondents thereafter filed a suit for injunction in the Civil Court for restraining the Corporation from taking possession of the said two plots in execution of the decree of the Mamlatdar's Court on the ground that the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the said Act') applied to the suit lands and the tenancy, which was determined by the Corporation on 31st March, 1952 'could not be legally terminated. The respondents, therefore, contended that the decree obtained from the Mamlatdar's Court on 29th November 1952 was a complete nullity and the said decree could not be legally executed. The respondents, therefore, claimed an injunction in that suit against the Corporation. The Corporation, however, vehemently contended that the Corporation lands leased to the respondents and which were situated in the Corporation limits, were exempted from the provisions of the Tenancy Act and the Tenancy Act did not apply to the suit lands and that the said decree of the Mamlatdar's Court was legal and proper. It appears that ultimately this suit was compromised between the parties and a consent decree was passed on 10th November 1954. Under the said consent terms, the respondents-plaintiffs stated that they had handed over the possession of the other final plot No. 769 to the Corporation on 12th June 1954. For the present plot No. 772 in question, it was agreed that the respondents-plaintiffs shall continue its possession upto 31st March 1959 on their annually paying from 1-4-55 mesne profits of Rs. 95. 36 to the defendant-Corporation. It was also agreed that the respondents had to pay In respect of that plot No. 772 a sum of Rs. 715-8-6 as mesne profits at the rate of Rs. 155/- per year from 1950-51 upto 31st March 1959. Out of the said amount, Rs. 387 8-0 were paid in cash to the Corporation and the respondents-plaintiffs were to pay the balance amount as per the agreed installments. It way further agreed that if the respondents made a default in paying three instalments, the decree could be executed and possession of final plot No. 772 could be taken even before 31st March 1959. On the expiry of the said period of 31st March 1959, the respondents were to hand over actual possession of final plot No. 772, after removing their goods etc. and if they made any default, the Corporation was to take the possession of the said plot No. 772 by executing the decree through the Court at the costs of the respondents. It was also agreed that an injunction was granted against the Corporation that they should allow the huts of the respondents on final plot No. 772 for residential purpose to remain in existence till the aforesaid period upto 31st March 1959 and that the respondents were not to make any further construction in the said plot and were not to assign it to anyone or to transfer its possession. If the respondents committed a breach, the Corporation was entitled to take possession of the said final plot No. 772 after giving one month's notice in writing even before the expiry of the said period till 31st March 1959 by executing this decree. Clause 6 in terms recited that there is no relation at all between the plaintiffs and the defendant as a landlord and a tenant. In Clause 7 the description of the boundaries was given and it was mentioned that the property situated as aforesaid was of the value of about Rs. 20,000/- and admeasuring 2 Acres and 15 Gunthas. The compromise finally recited that as the above terms were agreed between the parties, it was declared that nothing remained to be done by the defendant-Corporation in respect of the Mamlatdar's Court's decree In Suit No. 169 of 1949-50. In pursuance of these consent terms, the trial Court passed a decree incorporating the entire compromise. Thereafter, the defendant-Corporation applied for execution of this decree for taking possession of final plot No. 772. The respondents contended before the executing Court that the consent decree was a complete nullity and as the Court lacked inherent jurisdiction to pass such a decree, the same was not executable. The executing Court over-ruled these objections and held that the decree was executable. The said decree of the lower Court was confirmed in appeal. When the Second Appeal came up before our learned brother Raju, J., he, however, held that the said decree was a complete nullity and it could not be executed. He held (1) that as the Tenancy Act applied to the land in question, the Civil Court had no jurisdiction to pass a decree for possession; (2) that the consent decree created a lease, but the same not being a registered lease, there was no objection to the execution of this decree; (3) that the Civil Court had no jurisdiction to pass such a decree for possession in favour of the defendant in a suit filed by the plaintiffs for injunction and especially, when no Court-fees were even paid by the defendant-Corporation for getting such a decree in its favour, and no cross-objections were even lodged; and (4) that in any event the trial Court had no jurisdiction to pass a decree for possession for final plot No. 772 which was admittedly worth Rs. 20, 000/- as the trial Court's pecuniary jurisdiction extended only upto Rs 10,000/- at the relevant time. Our learned brother Raju, J., therefore, reversed the decree of the two lower Courts and dismissed the darkhast filed by the Corporation. Our learned brother, however, granted the certificate for appeal under Clause 15 of the Letters Patent and therefore, the present appeal has come up before us.

3. The learned Advocate General has challenged this decree on all the grounds on which it has been decided against the Corporation. Before considering the various objections, it would be proper, at the outset, to consider the terms of the consent decree in question, which we have already set out. Originally, the Corporation had obtained a decree for possession from the Mamlatdar's Court on 29th November 1952 after terminating the defendant's tenancy on 31st March 1952 in respect of both the plots, including the final plot No. 772 in question. The respondents had challenged this decree in the Civil Court on the ground that the Tenancy Act applied to the lands in question. The Corporation, in turn, raised an objection that these lands were exempted from the provisions of the Tenancy Act. The respondents gave up their contention as regards the application of the Tenancy Act and ultimately the present compromise was arrived at. At the time of the present compromise, which was filed before the trial Court on 10th November 1954, the possession of the other final plot was already handed over to the Corporation on 12th June 1954. The consent terms are, therefore, confined only to the other final plot No. 772. In consideration of the compromise, the concluding portion, in terms, recited that nothing remains to be done by the defendant-Corporation in respect of the decree for possession obtained from the Mamlatdar's Court. In order to remove any doubt, Clause 6 in terms made it clear that there is no relation at all between the plaintiffs and the defendant as a land-lord and a, tenant. This clause has been inserted with a view that no contention may be afterwards taken that the decree creates any lease. Under Clause 2, the amount of mesne profits had been determined at the rate of Rs. 155/- per year, from 1950-51 upto 31st March 1955 and Rs. 95. 06 had been agreed for the period from 1-4-1955 to 31-3-1959. If the respondents did not make any default and continued to pay the mesne profits as agreed, they were permitted to continue possession of final plot No. 772 upto 31st March 1959. If the default clause applied, or if the conditions mentioned in Clause 5 were violated, possession could be taken in execution of this decree even earlier. On the expiry of the said period till 31st March 1959, it was clearly provided in Clause 4, that possession could be obtained by the Corporation even by executing this decree. Thus, as a whole, the compromise substitutes for the original decree of possession by the Mamlatdar's Court the new consent decree for possession, giving time to the respondents upto 31st March 1959, provided they paid mesne profits as agreed and observed other conditions. The consent terms, therefore, provided a consideration for settling the plaintiffs' suit and are intimately connected with the plaintiffs' suit for injunction. There is nothing in this compromise which is not within the scope of the plaintiff's suit. The whole purpose of the plaintiffs' suit was to avoid immediate execution of the decree of possession and the compromise retained the decree for possession, adding only a restriction against the Corporation that they would have to continue the plaintiffs for a period upto 31st March 1959 on payment of mesne profits. Such a decree could never create a lease, as it is in terms agreed that it does not create the relationship of land-lord and tenant and only gave a liberty to the tenant to continue possession for the agreed term on payment of the mesne profits. The decree only gave further time, but it remained a decree for possession. The decree also, not only relates to the plaintiffs' suit, but being a consideration and intimately connected with it, no part of it is outside the scope of the plaintiffs suit. Ignoring all the technicalities of form, in substance, the original decree for possession was only modified by giving some relief to the plaintiffs for the agreed period. It is in the context of such a decree that we have to consider the various contentions which have been urged before us.

4. The main question which arises for our consideration is as to how far the validity of a decree can be challenged before the executing Court. It is well-settled that the only objection that can be raised before the executing Court is as regards the decree being a nullity in the true sense and not the objection as regards its invalidity. The distinction between a nullity and an invalidity is the same distinction which is between the existence of jurisdiction and the exercise of jurisdiction. When the Court passing the decree lacks inherent competence over the subject matter or the parties, there is a total lack of jurisdiction. The lack of jurisdiction in such a case would go to the root and the decrees passed by such a Court which lacks inherent competence would be a complete nullity. This objection of nullity can, therefore, be set up even at the stage of execution or in collateral proceedings. On the other hand, where the Court passing the decree does not lack inherent competence, but has jurisdiction over a suit, the decree passed by such a Court would be in the exercise of its jurisdiction. When the Court does not lack inherent jurisdiction, the decree passed by such a Court in the exercise of its jurisdiction may be vitiated by an illegality or even a material Irregularity. Such jurisdictional errors may even render the decree invalid but they would not make the decree a nullity. In the latter case, when the Court does not lack inherent jurisdiction, the objection as to the invalidity cannot be raised at the execution stage or in collateral proceedings as such a decree would remain a valid decree until it is set aside in appeal or revision or in competent Writ Proceedings. This distinction between a nullity and invalidity has been pointed out by Their Lordships of the Supreme Court in Dhirendra Nath Goral v. Sudhir Chandra Ghosh and Ors. : [1964]6SCR1001 . Approving the observations by Mookerjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania I.L.R. 95 Calcutta, 61 at page 72, after referring to Maonamara on 'Nullity and Irregularities', it Is observed:.No hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that Is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated.

Their Lordships added that whether a provision falls under one category or the other is not easy of discernment. A workable test as evolved by Justice Coleridge in Holmes v. Russell (1341) 9 Dowl 487 is as under:

It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity.

Their Lordships pointed out that where the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not, because consent cannot give jurisdiction where there is none. In Kiran Singh v. Chaman Paswan : [1955]1SCR117 , Their Lordships further considered this question and made a material distinction between the objections which were of a technical nature as to the pecuniary or territorial jurisdiction and of a substantial nature as regards the competence of the Court over the subject matter or the parties. At page 342, Their Lordships indicated the general well-established principle 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. Their Lordships, however, added that it is a general principle to which there are well-recognized exceptions. Their Lordships considered the scheme of Section 11 of the Suits Valuation Act and in Sections 21 and 99 of the Civil Procedure Code. At page 342, Their Lordships made the following pertinent observations:

The policy underlying Sections 21 and 99, C.P.C. and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.

Further proceeding at page 343, Their Lordships approved the observations of the Judicial Committee in Rachappa Subrao v. Shidappa Venkatrao A.I.R. 1918 P.C. 188 to the effect that the objection as to the Court-fees was the most technical of technicalities and if such an objection was not taken in the Court of the first instance, the Court would not give any assistance for such an untenable objection. The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State. When the defendant sought to utilize the provisions of the Court-Fees Act not to safe-guard the Interests of the State, but to obstruct the plaintiff, he did not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction. In these circumstances, it was held, and these observations are approved by Their Lordships of the Supreme Court, that such an objection on the score of Court-fees as to the jurisdiction of the Court was only technical in character and should not be entertained, if not raised in the Court of the first instance. Mr. Shah, no doubt, vehemently urged that these observations of Their Lordships of the Supreme Court, where they make a distinction in respect of objections regarding the pecuniary jurisdiction or regarding the local venue of a suit, treating them as only of a technical nature and which could be waived, are not of general application. We cannot agree with Mr. Shah in this reading of the observations of Their Lordships. No doubt Their Lordships referred to Section 11 of the Suits Valuation Act and Sections 21 and 69 of the Code, but it was for finding out the policy of the Legislature, which was to treat such objection regarding pecuniary valuation and as regards the local venue as only of a technical nature as distinguished from the objection regarding the competence of the Court over the subject matter or the parties. There can be no doubt left in our mind if we consider the observations of Their Lordships in the later decision in Hira Lal Patni v. Shri Kali Nath : [1962]2SCR747 . In that case, the suit had been instituted before the Bombay High Court on the original fide after obtaining necessary leave of the High Court under Clause 12 of the Letters Patent. At the stage of execution, an objection was raised that as no part of the cause of action had arisen within the jurisdiction of the Bombay High Court, the decree was a complete nullity The decision of the Privy Council in the case of Ledgard v. Bull 13 Ind. Appl. 134 (P.C.) was vehemently relied upon. At page 200, Their Lordships of the Supreme Court pointed out that the aforesaid decision in Ledgard v. Bull was only an authority for the proposition that consent or waiver can cure only a defect of jurisdiction, but it cannot cure inherent lack of jurisdiction. In the case before Their Lordships of the Privy Council, the suit bad been instituted in the Court of the Subordinate Judge, who was incompetent to try it and for convenience of trial it was transferred to the District Judge. In these circumstances, it was laid down by the Privy Council that as the Court in which the suit had been instituted was entirely lacking in jurisdiction, in the sense that it was incompetent to try it, whatever happened subsequently was null and void, because consent of parties could not operate to confer jurisdiction on a Court which was incompetent to try the suit. Their Lordships pointed out that decision could have no relevance to a case where there could be no question of inherent lack of jurisdiction in the sense that the Bombay High Court was incompetent to try a suit of that kind. In that context, Their Lordships observed that the objection to the territorial jurisdiction is one which does not go to the competence of the Court and it can, therefore, be waived. The Bombay High Court had granted leave under Clause 12 of the Letters Patent and that order could have been questioned by the defendant and the said objection could be waived. Thereafter, Their Lordships made the following pertinent observations:

It is well settled 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 rase. 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' On the other hand an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure. (Italics ours)

That is why Their Lordships laid down the final ratio as regards the objection which could be raised before an executing Court in the following words at page 200:

The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin 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.

In Bahrein Petroleum Co. Ltd v. P.J. Pappu and Anr. : (1966)IILLJ144SC , Their Lordships approved the aforesaid observations in Kiran Singh's case as to the objection regarding the territorial and pecuniary jurisdiction being technical in nature. Their Lordships also pointed out that in Hiralal Patni's case , it was held by this Court even independently of Secti : [1962]2SCR747 on 21 of the Code which provides an exception, that the defendant could waive the objection as to the local venue for suits and be would be subsequently precluded from taking it. Therefore, it is now well-settled that the executing Court can go into the question of validity of a decree only on the short ground that the decree is a nullity in the true sense. In such a case, the distinction must always be kept in mind between the objections which are of a technical nature and which could be waived. It is only the objection as to the competence of the Court over the subject matter to try the suit or over the parties, which cannot be waived and which would, therefore, render a decree a nullity in the true sense and such an objection alone can be raised before the executing Court or even in collateral proceedings. The other objections as to the defect of jurisdiction whether on the ground of pecuniary jurisdiction or as regards the local venue of the suit or even on the score of Court-fees would be only technical objections, which would be capable of waiver. If those objections were not urged in the Court of the first instance and they had been waived by not challenging the order in appeal, revision or in Writ Proceedings, those objections could not be taken before the executing Court, as that invalidity or jurisdictional error would not go to the root and would not render the decree a nullity in the true sense.

5. We would now apply the aforesaid principles to the facts of our case to find out whether the present consent decree was a nullity in the true sense. The first ground which has been accepted by our learned brother Raju, J. is that in view of Sections 85 and 85A of the Tenancy Act, the Civil Court lacked inherent jurisdiction over the suit lands and it could not pass a decree for possession. If a particular subject matter is excluded from the jurisdiction of the Civil Court, it would lack inherent jurisdiction. This point would have been a point regarding the nullity of a decree and could be raised before the executing Court. In the present case, however, this point proceeded on an assumption that Sections 85 and 85A of the Tenancy Act applied to the suit lands. In fact, as we have mentioned, this point was vehemently contested by the Corporation. The Corporation claimed exemption from the provisions of the Tenancy Act in respect of the Corporation's lands which were leased to the respondents and which were situated within Corporation limits, and this question of exemption could have been determined only by the trial Court. In Patel Gordhanbhai Vaghjibhal v. Ranchhodbhai Samtabhai VII G.L.R. 311, the Full Bench of this Court consisting of Shelat, C.J., as he then was, Bhagwati, J. as he then was and Divan, J. have in terms held that the question whether the Tenancy Act, including Sections 85 and 85A, applied to the suit lands can be decided only by the Civil Court and the Civil Court's jurisdiction to that extent was never excluded. It is only after the Tenancy Act is held to be applicable, that Sections 85 and 85A would come into play and thereupon the Civil Court's jurisdiction would be excluded for determining questions which are left to the exclusive jurisdiction of the Tenancy Court under the Tenancy Act. In the present case, this contention was already given up by the plaintiffs, in view of the exemption claimed by the Corporation. After the same was given up and waived, the present compromise was arrived at and the consent decree was passed on the footing that the Tenancy Act did not apply to the suit lands in question In that view of the matter, it was not open to the executing Court to go into this question. This point was for the first time raised in the Second Appeal before our learned brother Raju, J Mr. Shah is also unable to substantiate this contention in view of the fact that this objection had been completely waived. If the objection was raised, the trial Court would have decided this question as it was the Civil Court alone which was competent to go into this question. Once it was waived, the decree never suffered from any defect of nullity as contended by the respondents-plaintiffs. Therefore, this ground was not even pressed seriously before us by Mr. Shah on behalf of the respondents.

6. As regards the other contention that the decree created a lease, the said objection has not ultimately affected the decision, because our learned brother Raju, J. also found that even as a lease, it was not a registered lease. On the terms of the compromise decree, which we have already considered, there could be no doubt as to its true construction that it never created any lease whatsoever and in fact, the parties took a precaution to make the entire legal position clear in Clause 6 that no relationship of landlord and tenant was sought to be created. Such a decree which is giving time to a tenant and under which possession is to be handed over on a particular date or even earlier, if the person did not comply with the terms, would never create a lease. In any event, as pointed out by Datar J. in Bai Manuben Chimanrao v. Bhimbhai Nagarji 60 Bom. L.R. 122, this question could not be raised before the executing Court for the simple reason that once the trial Court passed a decree under Order 23, Rule 3, if it committed any error in incorporating this direction in the decree, in so far as it did not relate to the suit, it only committed a jurisdictional error. The Court having complete jurisdiction over the suit and on matters relating to the suit, the consent decree could be made. The Court, therefore, did not lack inherent jurisdiction and the decree in such a case would not be a nullity. Mr. Shah also has rightly not pressed this ground before us and even the ultimate conclusion of our learned brother Raju, J. is not found on this ground. The Corporation is only affected by the conclusion that the decree created a lease and we hold that this conclusion was wholly unjustified on the plain reading of the present consent decree.

7. The material question which has been raised in the present appeal it based on Order 23, Rule 3 of the Civil Procedure Code which runs at under:

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so for as it relates to the suit. (Italic ours)

It is clear from Order 23, Rule 3 that it is the duty of the Court to see that although the whole of the compromise between the parties is recorded, the operative portion of the decree is confined to that part only which relates to the suit. Under the old Section 375 of the Code of Civil Procedure after the aforesaid words, the section proceeded to add 'and such decree shall be final, so far as relates to so much of the subject matter of the suit as is dealt with by the agreement, compromise or satisfaction'. The distinction between the old Section 375 and the present Order 23, Rule 3, has been considered by the Full Bench of the Allahabad High Court consisting of Sir Shah Muhammad Sulaiman, Chief Justice, Mukerji, J. and King, J. In I.L.R. 55 Allahabad 775 (Sahu Shyam Lai v. Shyam Lai). At page 779, the learned Chief Justice, speaking for the Full Bench, observed thai the expression 'so far as it relates to the suit' is some what wider than the expression 'so far as relates to so much of the subject matter of the suit as is dealt with by the compromise', because it is certainly possible to conceive of matters which may not, strictly speaking, be the subject matter of the suit Itself as brought and yet they may relate to the suit. Their Lordships, held that so long as the compromise related to the suit, the Court had full authority under Order 23, Rule 3 to pass a decree in terms of it, even though it might not have, strictly speaking, formed the subject matter of the suit. The learned Chief Justice also considered the definition of the term 'decree' in Section 2 of the Code and pointed out that it did not prevent the Court from passing a decree in terms of the compromise which related to the suit, although it might not be called the subject matter of the suit. All that the definition of the term 'decree' required was that the Court might determine the right of the parties in regard to all or in regard to any the matters in controversy in the suit, viz., matters that may be in controversy in the suit and matters that may be brought in by the parties. If the property had not been included in the suit, it could be so included by a proper amendment of the plaint. Merely because the Court deals with it without going through the formality of amending the plaint, would only be an illegality or non-compliance with the provisions of the second schedule, and not necessarily a question of jurisdiction. Where the Court bad jurisdiction to deal with the property, having regard to its nature, character and valuation, the mere fact that it was not originally included in the plaint would not oust the jurisdiction of Court when it was acting upon the agreement of the parties. Thus, it is well-settled that the expression 'so far as it relates to the suit' has a very wide import. We must not look at merely to the frame of the suit, the reliefs claimed, but it would also include the entire controversy in the suit which is raised between the parties by the pleadings. A workable test in this connection is evolved by the Division Bench consisting of Baker, J. and Nanavati, J. in Shambuslng Sujansing v. Manilal Vadilal Gandhi 33 Bombay Law Reporter, 1457. At page 1466, Baker J. observed that there is a balance of authority in favour of the view that where the term in question is a consideration of the compromise and therefore intimately connected with it the words 'so far as it relates to the suit' are sufficiently wide to embrace it. In the case before Their Lordships, toe compromise was only in respect of the land which formed the subject matter of the suit and as regards the mortgage which also formed the subject matter of suit and the terms of the decree related to the manner in which the plaintiff's claim in the suit bad to be met. The decree in question was held to be covered under the scope of Order 23, Rule 3. This test of His Lordship Baker, J. seems to have been approved even by Their Lordships of the Supreme Court in Abdul Shakoor v. Bijai Kumar : AIR1964SC874 , their Lordships in terms applied this test and held that the conveyance which was, agreed in the compromise terms was the consideration for the compromise. We must, therefore, interpret the expression 'so far as it relates to the suit' in this wide context as to include matters which form a consideration and are thereby intimately connected with the suit and the Court need not confine the operative portion of the decree only to what is strictly the subject matter of the suit, as seen from the frame of the suit and reliefs claimed. Even if the trial Court wrongly incorporates in the consent decree even portion which does not relate to suit, a material question which will have to be still determined would be as to whether such an error would be only an error in the exercise of jurisdiction or one which will make the consent decree a nullity in the true sense. Our learned brother Raju, J. has In this connection, vehemently relied upon the observations of Their Lordships of the privy Council in Rani Hemanta Kumari Debi v. The Midnapur Zamindari Co. Ltd., 22 Bombay Law Reporter, 488 as laying down that the operation of a compromise decree is to be limited to so much of the subject matter of the suit as is dealt with by the agreement, and that it may be incapable of being executed outside the lands of the suit. In the case before the Judicial Committee, amongst the other terms of the compromise, there was a term that if the plaintiff succeeded in obtaining a decree against Government in respect of lands other than those contained in the suit against defendant she would grant a lease of them to the defendant, on the same conditions as those agreed to with regard to the land in his possession. Subsequently, although the plaintiff succeeded in the suit against Government, she refused to grant a lease to the defendant who thereupon sued her for specific performance of the agreement. The principal question which was raised in the lower Court was that the consent decree was inadmissible in evidence for want of registration. This consent decree, it must be noted, was passed under Section 375 of the Civil Procedure Code 1882. Their Lordship of the Judicial Committee of the privy council interpreted Section 375 and held that it was the duty of the Court to record the agreement or compromise, in whole or in part and thereafter, the decree was to confine its operation to so much of the suit as was dealt with by the agreement. Their Lordships thereafter Indicated the correct procedure in such case for carrying out the terms of Section 375 that the decree must recite the whole of the agreement and then to conclude with an order embodying those matters which related to the suit, or it could introduce the agreement in a schedule to the decree; but in either case, although the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation, the decree taken as a whole would include the agreement. In this context, at page 496, Their Lordships of the Judicial Committee of the Privy Council observed as under:

This in fact is what the decree did in the present case. It may be that as a decree it was incapable of being executed outside the lands of the suit, but that does not prevent it being received in evidence of its contents.

This decision is really on the terms of Section 375 of the old Code which, as we have already indicated, was not as wide as the provisions of Order 23, Rule 3. Besides, Their Lordships of the Judicial Committee of the Privy Council were never directly concerned with the question whether the decree in the former suit in that case went outside the subject matter of the suit. Their Lordships only decided the narrow question whether the decree was inadmissible in evidence for want of registration and gave the categorical answer that such a decree which may be incapable of execution outside the lands of the suit was not inadmissible in evidence. In fact, Their Lordships were never called upon to decide the question whether the Court was acting wholly without jurisdiction, if it did not follow strictly the direction under Order 23, Rule 3 by confirming the operative portion of the decree only in so far as it relates to the suit or merely because it gave a wrong answer on this issue. Once the Court was competent to record a compromise, this was a question in issue before the Court because the Legislature laid down a duty on the Court to decide as to what related to the suit and what did not relate to the suit. Such a question obviously is a question of law specifically left by the Legislature to the Court which is called upon to pass a decree on perusal of the compromise submitted to it for recording. Even if the Court committed any error on this question of law, the error was one wholly within its jurisdiction. It is only if the Court lacked inherent jurisdiction over the subject matter of the compromise, that the position might be different, because in that case there would be lack of the very existence of jurisdiction to record a compromise. If, however, the Court had jurisdiction to record a compromise and while exercising the jurisdiction, had committed an error in holding what portion related to the suit and what did not relate to the suit, such an error would be a mere error in the exercise of jurisdiction, which would never render the decree a nullity. On this question, the Full Bench in the aforesaid Allahabad decision in I.L.R. 55 Allahabad, 775 observed at page 782 as under:

We think that even in cases where a part of the compromise does not, strictly speaking, relate to the suit and nevertheless the Court decides that it relates to the suit and incorporates it into the operative portion and passes a decree in terms of it, the decree is not a nullity and not one passed without jurisdiction, but wouldbe binding upon the parties to the decree and its validity cannot be questioned in the execution department, not can any title derived under it be attacked.

The learned Chief Justice was particular In pointing out at page 778 that if the Court had no jurisdiction to incorporate any part of the compromise into the decree, the decree would be ultra vires and therefore void and a nullity and the auction purchase would fall with it because in such a case the Court would lack inherent jurisdiction to entertain the compromise. Such cases were envisaged by the learned Chief Justice as one where a small cause Court had no jurisdiction to deal with rights to immovable properties, or of a revenue Court which had no jurisdiction to deal with immovable property, or of a Munsifs Court which had no pecuniary jurisdiction to deal with properties of higher valuation or of a civil Court which had no jurisdiction to deal with matters which are exclusively within the jurisdiction of the revenue Court. Such decrees would be nullities because the Court lacked inherent competence even to entertain the compromise or pass a decree over such a subject matter which was not within its jurisdiction at all. This view has been consistently followed In our Bombay decisions. As we have already mentioned, Datar J. in terms followed it in Bat Manuben Chimanrao Kaluji v. Bhimbhai Nagarji 60 Bombay Law Reporter 122(125), Madgavkar J. in Bajirao Narhar Peshwa v [Sakharam 33 Bombay Law Reporter 463(467), Lokur J. in Ambalal v. Somabhai 45 Bombay Law Reporter 1045 and Dixit J. In Nanalal v. Ambalal 53 Bombay Law Reporter 586(589) and we are in complete agreement with the said ratio. The only objection, which therefore, can be urged before the executing Court would be in case of such a consent decree that the trial Court lacked Inherent jurisdiction over the subject matter itself to entertain such a compromise as the matter was one on which the Civil Court's jurisdiction was wholly excluded or because it was 'a Court of limited jurisdiction and it had no jurisdiction over the subject matter, on which it sought to pass a consent decree, or because the suit as instituted was inherently incompetent. Every Court in this connection must approach this problem on the settled principles which we have already indicated in Hiralal Patni's case, keeping in mind those objections which are of a technical nature and which could be waived and the real or substantial objection on the score of competence of the Court over the subject matter or the parties, which could not be waived and which strikes at the very authority of the Court to pass any such consent decree or any decree on merits as well. It is only when the Court lacks such inherent competence over the subject matter or, the parties that the decree would be a nullity and this objection can be urged even before the executing Court. If however, the Court did not lack such inherent competence over the subject matter and the error which it committed was one in incorporating the entire compromise terms in the operative decree, the error would be one in the exercise of jurisdiction and such an objection would be one which could be waived and so, if no appeal or revision or Writ Proceeding was filed, it would not be open to the executing Court in any event to go Into such an objection.

8. We would now apply these principles to the facts of our case. Mr. Shah also ultimately did not make any attempt to contend that the present consent decree did not relate to the suit. In fact, as we have already indicated, all the terms were wholly within the scope of the present suit and the consent terms were, by way of consideration for compromising the plaintiff's claim for resisting the decree of the Mamlatdar's Court and it was wholly intimately connected with it. The concluding portion of the decree left no doubt whatever that for one decree, the other decree for possession was substituted giving only some breathing time to the respondents-plaintiffs, provided they complied with the terms mentioned in the compromise. Mr. Shah, however, confined his attack on the ground that the decree was a nullity in the present case as the Court lacked inherent jurisdiction. This contention of Mr. Shah has been accepted by our learned brother Raju, J. on four grounds: (1) that in an injunction suit, a civil Court has no jurisdiction to decree a relief for possession; (2) that in any event, a civil Court would have no jurisdiction to pass a decree for possession in favour of the defendant, as at best, it can dismiss the plaintiff's suit; (3) that in any event, the defendant-Corporation got a decree for possession without even paying any Court-fees and (4) that on the, face of the decree, the valuation of the property in question was Rs. 20,000/- and the pecuniary jurisdiction of the trial Court extended only to the value of Rs. 10,000/- at the relevant time and therefore, the present decree was a complete nullity in the true sense. As regards the first objection of Mr. Shah, it merely relates to the form of the suit. Once we hold that the expression, 'so far as it relates to the suit' are of a wider import, the present consent decree would be clearly included within the scope of the suit. Even on the second ground, our learned brother Raju, J. with great respect to him, proceeds on an assumption that under the Code a decree in favour of the defendant could be passed only under the various provisions mentioned in Order 20 in case of administration suits, partition suit, account suits, or where set-off or counter claim is allowed. The Code is not exhaustive as held by our learned brother Raju, J, in fact, Order 23, Rule 3 itself is another provision where a compromise could be arrived at and the operative portion could be confined to matters related to the suit and in such related matters, the parties could agree to a decree which might be in favour of any of the parties to the suit. On this view, we are supported by high authority. In Abdul Shakoor v. Bijai Kumar Kapur : AIR1964SC874 , it was a suit on a simple mortgage and under the consent terms, it was provided in Clause 2 that the mortgaged properties are hereby sold for the amount of the decree in full satisfaction thereof and the defendant would execute a regular sale-deed within 10 days. Under Clause 4, on the judgment-debtors or their nominess tendering the aforesaid decretal amount, the decree-holders were bound to reconvey the properties which were sold to them under the compromise. Thus, the consent terms bound both the parties. The defendants were to execute the sale-deed in favour of the plaintiffs initially and there was to be a reconveyance by the plaintiffs-decree-holders in case the judgment-debtors deposited the decretal amount within the agreed period. When a question had arisen as regards the validity of this consent decree in execution, Their Lordships first at page 876 observed that it was not necessary to consider whether the objection as to the excludability of any particular term could be raised in execution proceedings and the question was decided on the assumption that it could be done. In the case before Their Lordships, it was held that the terms of the compromise related to the suit. The property which was to be conveyed consisted entirely of property included in the mortgage and it was, therefore, liable to be sold in execution of the mortgage decree which was the relief sought in the plaint. The sale price for the conveyance under the compromise was the sum for the recovery of which the suit was laid. There was, therefore, nothing which was outside the scope of the suit. Besides all this, the conveyance was the consideration for the compromise. Thus, even such a decree which imposed obligations on both the sides, as in the case of our present decree, was held to be a valid decree under Order 23, Rule 3, C.RC. on the ground that it related to the suit, as the conveyance was the consideration for the compromise and as there was nothing which was outside the scope of the suit. In Mehdi AH Khan v. Ghanshiam Singh 29 Bombay Law Reporter 1376, Their Lordships of the Judicial Committee of the Privy Council have also upheld the validity of such a decree in favour of the defendant. In that case, one Kunwar Bharat Singh who claimed to be the adopted son of Ghanshiam, had filed the suit for a declaration that all the mortgages which were executed by his father Ghanshiam in favour of Sayid Mehdi Ali Khan, Lala Gokal Chand and other defendants in respect of the family properties were not made for legal necessity and that they were not binding on the family. While referring to the written statement of Sayid Mehdi Ali, Their Lordships observed that the purpose of Mehdi Ali Khan was to get determined in those proceedings all questions as to his mortgage claims whether as against Bharat Singh or as against Ghanshiam Singh. In that case, a compromise was arrived at between Sayid Mehdi Ali Khan and Bharat Singh's father Ghanshiam. The said compromise was not even signed by Bharat Singh, the plaintiff. But Their Lordships were satisfied that Ghanshiam Singh had signed it on his own behalf as well as on behalf of the plaintiff Bharat Singh and with his full authority. Under the compromise, Sayid Mehdi Ali Khan, the appellant was to get clean conveyance both from the father and the son of the lands mentioned therein in full satisfaction of all his mortgage claims and he was to pay a sum of Rs. 5000/- for part satisfaction of Lala Gokal Chand's mortgage on the said land, which was to be so far extinguished. Various objections were raised as to this compromise, including one on the ground that it did not relate to the suit and that it did not bind Bharat Singh, who was not a party to it. Their Lordships of the Judicial Committee at page 1379 observed that Ghanshiam had the authority to bind Kunwar Bharat to the compromise in respect of his interest in the property, and in Their Lordships' view, the terms agreed to were such as to be susceptible in every detail to an effective order in the nature of specific performance against any party to the compromise who sought to escape from his obligations thereunder. In Their Lordships' judgment the term agreed to entirely disposed of the suit so far as the appellant's interests therein were concerned. In view of these two decisions, there can be no doubt that the trial Court was competent to pass such a decree giving relief to the plaintiff till 31st March 1959 and under which the plaintiffs were to finally surrender possession on the expiry of the said period. The compromise related to the suit and was wholly within the scope of the suit, and merely because the respondents-plaintiffs who took all the advantages of the earlier terms in their favour, sought to repudiate this agreement, the decree did not become a nullity at all. At least on these two grounds, there could be no contention of nullity at all as the Court never lacked any jurisdiction to incorporate all the terms of the consent decree because not only they related to the suit but they were completely within the scope of the present suit, and there was no bar under any provision of the Code to the passing of such a consent decree, as assumed by our learned brother Raju, J. As regards the third ground, the objection as regards Court-fees is the worst of the technicalities which can ever be imagined, as pointed out by Their Lordships in Kiran Singh's Case and even Mr. Shah had only faintly indicated this ground. In any event, all these objections are objections which would not show that the trial Court lacked inherent jurisdiction over the subject matter. They are all objections on the narrow ground that the Court was wrong in the exercise of jurisdiction in incorporating the whole of the terms In the present consent decree and such an objection, as we have already held, is one capable of waiver and it does not strike at the very root of the authority of the Court to pass the consent decree. If the plaintiffs-respondents did not challenge this decree in appeal or revision or in proper Writ Proceedings, they are precluded from challenging such a decree at the execution stage.

9. The most important ground which remains to be considered is the last objection of Mr. Shah that the trial Court lacked pecuniary jurisdiction to pass such a decree because the parties themselves had stated that the value of the land in question-final plot No. 772 was Rs. 20,000/- and the trial Court's pecuniary jurisdiction extended only to a value of Rs. 10,000/-. This contention has been upheld by our learned brother Raju, J. Mr. Shah, at the outset, argued that it would not be open to the appellant to urge that the valuation for the purpose of a suit was a different valuation at this stage. If our learned brother Raju, J. proceeded on an assumption that the value of the property determines the jurisdiction value, it would always be open to the appellant to show that this assumption was unfounded. The present contention of Mr. Shah is based on three erroneous assumptions. The first assumption is that the value of the land in question determined the jurisdictional value. Under Clause (xi)(cc) of Section 7 of the Court Fees Act, 1870, the valuation for the purpose of court-fees in a suit for possession between landlord and tenant would have to be valued at 12 times the monthly rent. The annual value of rent in the present case, as seen from even the amount of mesne profits agreed, was not more than Rs. 95.06 and even Mr. Shah did not contend that on that basis, the trial Court lacked jurisdiction in this case. Mr. Shah, however, argued that the parties had in terms mentioned that the landlord and tenant relationship no longer subsisted and mesne profits were made payable right from 1950-51 itself. That, however would not help Mr. Shah, because after the contractual tenancy is determined, the tenant holding over would be only at sufferance and would be liable to pay mesne profits and the parties would be entitled to state that no contractual relationship of landlord and tenant subsisted. In any event, if this question of valuation was raised before the trial Court, it could have decided whether the suit feel under Section 7, Clause (xi)(cc) or not. In such a case, under Section 8 of the Suits Valuation Act, the valuation for the purpose of the court-fees and jurisdiction would be the same. If the parties did rot challenge this question of valuation when this consent decree was passed, the objection as regards pecuniary jurisdiction would be clearly waived. No appeal or revision or Writ Proceedings were filed in this connection and therefore, the plaintiffs-respondents would, in any event, be precluded from raising this contention at the execution stage as it would only be an objection which was capable of waiver and which at this stage the respondents would be clearly precluded from taking as it is not an objection of nullity in true sense. 'The second assumption which Mr. Shah makes is that this was an independent claim of possession by the Corporation, which was wholly outside the scope suit, unless it was brought in by an amendment. As we have also considered this question, it is clear that the terms of the present compromise are wholly within the scope of the suit, unless we interpret the expression 'so far as it relates to the suit' in a very narrow manner as urged by Mr. Shah as reliefs claimed in the suit itself. If, therefore, on this question the trial Court made any error by holding what was not related to the suit as related to the suit, the error would be in exercise of jurisdiction, which would not render the decree a nullity. Third assumption which Mr. Shah makes is that the pecuniary jurisdiction of a Court is to be determined by the decretal amount and not from the jurisdictional value of the suit as instituted. Mr. Shah, in this connection, relied upon the decision of Dhavan, J. in Maharanl Devi v. Ram Adhar Pandey : AIR1962All20 , which no doubt supports the contention of Mr. Shah. At page 21, the learned Judge has observed that-

If during the suit the plaintiff agrees to compromise the suit and yields his right to the defendant for a pecuniary consideration, the Court can pass a decree in terms of the compromise, provided its pecuniary jurisdiction is not below the value out by the plaintiff on his right.

Mr. Shah also relied upon the decision of the Division Bench consisting of Mootham and Agarwala, JJ. in Nain Singh v. Mahendra Singh : AIR1952All196 . The suit was for an injunction and for the recovery of the estimated value not exceeding Rs. 5000/- of an unascertained number of trees cut down by the defendant. At the time of the compromise, the claim of damages for trees cut down during the suit had been included' which came to an amount of more than Rs. 5000/- and exceeded the pecuniary limits of the Munsif's jurisdiction. This compromise decree was held to be a nullity by Mootham J. speaking for the Division Bench. At page 197, the learned Judge, no doubt, considers that in a suit for mesne profits, like a suit for recovery of an amount due on taking unsettled accounts, a Court having jurisdiction does not lose that jurisdiction because of a change in the value of the subject matter during the course of the hearing. But a suit for damages stood on a different footing as it was for an ascertained sum representing the loss sustained prior to the institution of the suit and did not depend on events which occurred subsequently. The learned Judge held that if this amendment was sought, the Court would have no jurisdiction to entertain a claim of more than Rs. 5000/- and therefore, it was held that the decree was a nullity and this objection could be taken even before the executing Court. With great respect to Mootham, J., the learned Judge has not gone into the other question whether such an objection on the score of undervaluation or over-valuation was capable of being waived. The learned Judge sought to distinguish those cases in which a decree could be passed by a Court even in excess of its pecuniary jurisdiction as in suits for accounts or mesne profits on the ground that in those cases the valuation under went a change subsequently. That itself indicates that there is nothing in the Code which makes a Court lose its jurisdiction to pass a decree provided it possessed the pecuniary jurisdiction in respect of the suit at the time of its institution. In fact, the Division Bench consisting of Fawcett and Madgavkar, JJ. is Ambadas v. Vishnu Govind 28 Bombay Law Reporter, 1461 has taken a diametrically opposite view. In that case, the jurisdiction of the trial Court extended upto Rs. 5,000/- only and the consent decree was passed under Order 23, Rule 3 for an amount of Rs. 5,700/- and there was nothing to indicate how the excess valuation of Rs. 700/- arose. The executing Court had held that such a decree was a nullity for want of jurisdiction and the mere fact that the decree was for an amount of Rs. 5,700/- was ipso facto proof that it was beyond jurisdiction and a nullity. Madgavkar, J. at page 1463 pointed out that they were unable to agree with this view of the learned Subordinate Judge, because even if a suit had commenced within the jurisdiction and by the addition of mesne profits after the date of institution the amount was increased to an amount beyond the jurisdiction, a decree for the full amount was, nevertheless, perfectly valid and with jurisdiction. The learned Judge further observed that the jurisdiction in the first instance was determined under the Bombay Civil Courts Act by the valuation in the plaint and not by the result of the decree, whatever it might turn out to be. It is true that deliberate and mala fide undervaluation or over-valuation might cause the decree to be a nullity. At page 1464 also His Lordship expressly disagreed with the argument that if from whatever cause the value of the subject matter increased subsequent to the date of institution, jurisdiction ipso facto, ceased and the only proper procedure was to apply to the District Judge for transfer to a different Court which bad jurisdiction, having regard to the altered subject matter of the suit. In this context, His Lordship in terms referred to the provisions of Order 23, Rule 3, although it was subject to Section 6 of the Code. Section 6 provides that save in so far as is otherwise expressly provided, nothing in the Code shall operate to give any Court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits of its ordinary jurisdiction. This Section 6 was thus construed by the Division Bench as not coming in the way of a compromise under Order 23, Rule 3, because the Court which had competence over the suit when it was instituted would always get competence over related matters to the suit. This view was also followed by Dixit, J. in Nanalal v. Ambalal 53 Bombay Law Reporter, 586. In fact, if we turn to the decision of Kiran Singh's case which we have already considered, the whole policy of the Code is to treat the objections regarding pecuniary jurisdiction and regarding the local venae of a suit as only technical In character and capable of waiver. It is this ground alone which can justify such decrees.

10. Therefore, in any view of the matter, if we had to adopt the ratio of Hiralal Patni's case in : [1962]2SCR747 , in the present case, the Court never lacked any competence Over the subject matter of the compromise and it had jurisdiction to pass the consent decree. The Court was competent to try the suit as originally instituted and the consent terms were only within the scope of the suit and related to the suit. Such a consent decree could not be attacked on the ground that it is a nullity. All the contentions which have been raised by Mr. Shah are only contentions which would show, at best, that there is an error in the exercise of jurisdiction. That, however, would not make the decree of a competent Court which did not lack Inherent jurisdiction over the subject matter or the parties, a nullity.

11. In that view of the matter, with great respect to our learned brother Raju, J. we are unable to hold that the present decree was a nullity and that it could not be executed or that the executing Court was competent to go into this question and we disagree with his findings on all the grounds which are decided against the Corporation.

12. In the result, we allow this appeal and set aside the decree of our learned brother Raju, J. and restore the decree of both the lower Courts with costs all throughout. As the matter has now been sufficiently delayed all this time, the matter shall now go back to the executing Court for expeditious disposal in accordance with law. Appeal accordingly allowed with costs.


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