IMPORTANT POINT
A decree suffering illegality or irregularity of procedure cannot be termed inexecutable by executing Court.

Headnote:Delhi and Ajmer Rent Control Act, 1952-Section 13(1)(a)-Eviction suit on ground of default in payment of rent arrears-Suit decreed-Execution-Objection that during pendency of suit Rajasthan Premises (Control of Rent and Eviction) Act, 1950 had come into force and it provided an additional privilege on tenant to deposit of amount of rent arrears during pendency of suit and tenant not being provided an opportunity, eviction decree was nullity-Objections dismissed by executing Court and High Court upheld the order-Appeal-Distinction between a decree passed by Court having no jurisdiction and decree of Court which was merely illegal as violative of procedure-Decree was not nullity-No interference was called for.
Held : It is not the plea of the judgment debtors-appellants that the Court which passed the decree did not have the jurisdiction to do so. It is also not their case that a ground for eviction of the tenants on the ground of default in payment of arrears of rent was not available to the landlords-respondents within the meaning of the Delhi and Ajmer Act or the successor Rajasthan Act. The only submission made is that before passing the decree the Court should have afforded the tenant an opportunity of depositing the rent in arrears, which was not done. Firstly, we find merit in the submission of the learned counsel for the respondents that it was for the tenants to have invited the attention of the Court by making an application in that regard so as to avail an opportunity of wiping out the effect of their default, which gave rise to cause of action to the respondents, by depositing the rent during the pendency of the suit. That having not been done, the tenants-appellants cannot be heard to urge any infirmity in the decree. Secondly, accepting it at its face value, in the eyes of law, the challenge seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an "illegal decree , but that in itself would not amount to branding the decree as without jurisdiction or a nullity . The plea which is sought to be urged in the execution proceedings was available to be raised by the tenants before the High Court in an appeal against the decree. Such a plea was not taken before the passing of the decree and cannot now be allowed to be urged during the execution proceedings. It is unfortunate that a decree of eviction passed in a suit commenced in the year 1956 and culminating into a final decree in the year 1986 is still starving for its execution. (Para 10)

JUDGMENT

R.C. Lahoti, J.-Leave granted.

2. The suit property is situated in the city of Ajmer. In the year 1956, a suit was filed by the respondents-landlords alleging the appellants to be their tenants in the suit premises. According to the respondents, the appellants had defaulted in payment of rent for a period running over three years since 29.11.1952. A demand-cum-quit notice was served on the appellants, which having not been complied with, rendered the appellants liable to be evicted under clause (a) of sub-Section (1) of Section 13 of the Delhi and Ajmer Rent Control Act, 1952. The suit was decreed by the High Court holding the landlord-tenant relationship as proved and the appellants having incurred liability for eviction on the ground of default in payment of rent as alleged by the respondents.

3. When the decree was put to execution, the judgment debtors-appellants raised an objection as to the executability of the decree, submitting that during the pendency of the suit, by the effect of reorganization of States, Ajmer became part of Rajasthan w.e.f. 1st November, 1956 and the suit premises came to be governed by the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Section 13(1)(a) of the Rajasthan Act provides for the tenant incurring liability for eviction if the tenant has neither paid nor tendered the amount of rant due to the landlord for six months. However, the Rajasthan Act conferred an additional privilege on the tenant by providing that in a suit seeking eviction on the ground of default in payment of rent, the tenant may, during the pendency of the suit, deposit the amount of rent in arrears, with interest and costs, as directed by the Court, and in that event a decree for eviction cannot be passed. It was submitted that due to the failure of the Court in not having afforded the tenant such an opportunity in terms of the privilege conferred by the Rajasthan Act, the decree is rendered without jurisdiction and hence a nullity and is not available for execution. The objection was overruled by the executing Court and such dismissal of the objection to the executability of the decree was also upheld by the High Court. The aggrieved tenants have filed this appeal by special leave.

4. The submission made by Shri O.P. Sharma, learned senior counsel for the appellants, is that the provisions of the Rent Control Act are beneficial to the tenant and any protection conferred on the tenant must be given full effect to so as to protect the tenant from eviction unless permitted by law. Shri Sharma submitted that conferring the tenant with an opportunity for wiping out the effect of default by making deposit during the pendency of the proceedings is a privilege and protection specifically conferred on the tenant, and if any Court has passed a decree for eviction without complying with such provision of law, the decree would be a nullity and hence not available to be executed. On the other hand, the learned counsel for the respondents submitted that the decree is not a nullity and cannot be held to be inexecutable unless the decree can be said to be without jurisdiction, which it is not. The learned counsel for the respondents also pointed out that to avail the benefit of purging the effect of the default, it is for the tenant to make an application to the Court, seeking the opportunity of making a deposit and if the tenant did not do so he cannot be heard to contend that an opportunity for depositing the rent during the pendency of the proceedings was not allowed to him.

5. Having heard the learned counsel for the parties, we are satisfied that the appeal has no merit and is liable to be dismissed.

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 C

Click Here to Read the rest of this document

2003 Supreme(SC) 823

IMPORTANT POINT A decree suffering illegality or irregularity of procedure cannot be termed inexecutable by executing Court.

Cases Referred (1)

IMPORTANT POINT
A decree suffering illegality or irregularity of procedure cannot be termed inexecutable by executing Court.