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SUPREME COURT OF INDIA
J.C. Shah, K.S. Hegde and A.N. Grover, JJ.
Vasudev Dhanjibhai Modi - Appellant
Versus
Rajabhai Abdul Rehman and Ors. - Respondents
Civil Appeal no. 406 of 1967.
Decided On : 18-8-1970
Constitution of India, 1950 – Article 227 – Bombay Rents Hotel & Lodging House Rates (Control) Act – Sections 11, 5 – Ejectment – Rent in arrears – Vasudev Dhanjibhai Modi is owner of Plot – Since 1948 Rajabhai Munshi was a tenant of land at an annual rental of Rs. 411/-. – Alleging that Munshi committed default in payment of rent, Modi instituted a suit in Court of Small Causes, for an order in ejectment and for payment of rent in arrears. – Munshi deposited in Court an amount which he claimed satisfied liability to pay the rent in arrears. – Court of first instance dismissed suit. – In appeal to District Court at Ahmedabad order of Court of First Instance was reversed and a decree in ejectment was passed in favour of Modi. – Order was confirmed in a revision application filed before High Court of Bombay. – A petition for special leave to appeal against that order was granted by this Court but was later vacated when it was found that Munshi had made false statements in his petition. – But in a petition under Article 227 of Constitution moved by Munshi High Court of Gujarat reversed order of Court of Small Causes and ordered that petition for execution be dismissed – With special leave, Modi has appealed to this Court – Whether Court of Small Causes had jurisdiction to entertain suit against Munshi depended upon interpretation of terms of agreement of lease, and the user to which land was put at date of the grant of lease – Held, These questions cannot be permitted to be raised in an execution proceeding so as to displace jurisdiction of Court which passed decree. – If decree is on the face of record without jurisdiction and question does not relate to territorial jurisdiction or under section 11 of Suits Valuation Act, objection to jurisdiction of Court to make decree may be raised; where it is necessary to investigate facts in order to determine whether Court which had passed decree had no jurisdiction to entertain and try suit, objection cannot be raised in execution proceeding. – High Court was of view that where there is lack of inherent jurisdiction in Court which passed decree, executing Court must refuse to execute it on ground that decree is a nullity. – But, for purpose of determining whether Court which passed decree had jurisdiction to try suit, it is necessary to determine facts on decision of which question depends, and objection does not appear on face of record, executing Court cannot enter upon and enquiry into those facts. – In view of High Court since land leased was at date of lease used for agricultural purposes and that it so appeared on investigation of terms of lease and other relevant evidence, it was open to Court to hold that decree was without jurisdiction and on that account a nullity. – View taken by High Court, cannot be sustained. – Appeal Allowed
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JUDGMENT
Shah, J. - Vasudev Dhanjibhai Modi is the owner of Plot No. 15/3 of Jamalpur Town Planning Scheme, Ahmedabad. Since 1948 Rajabhai Munshi was a tenant of the land at an annual rental of Rs. 411/-. Alleging that Munshi committed default in payment of rent, Modi instituted a suit in the Court of Small Causes, Ahmedabad, for an order in ejectment and for payment of rent in arrears. Munshi deposited in Court an amount which he claimed satisfied the liability to pay the rent in arrears. The Court of first instance dismissed the suit. In appeal to the District Court at Ahmedabad the order of the Court of First Instance was reversed and a decree in ejectment was passed in favour of Modi. The order was confirmed in a revision application filed before the High Court of Bombay. A petition for special leave to appeal against that order was granted by this Court but was later vacated when it was found that Munshi had made false statements in his petition.
2. In the meanwhile Modi applied for execution of the decree in ejectment against Munshi. Munshi raised the contention that the Court of Small Causes had no jurisdiction to entertain the suit and its decree was on that account a nullity. According to Munshi the suit premises were not governed by the Bombay Rents Hotel & Lodging House Rates (Control) Act 57 of 1947, and that in any event Parts II & III of that Act did not apply to open land and on that account the decree of the High Court confirming the decree of the District Court was without jurisdiction. The Court executing the decree rejected the contention. An appeal against that order to a Bench of the Court of Small Causes was also unsuccessful.
3. But in a petition under Article 227 of the Constitution moved by Munshi the High Court of Gujarat (that High Court having, by virtue of the provisions of the Bombay Reorganisation Act, 1960, acquired jurisdiction to deal with and dispose of the case) reversed the order of the Court of Small Causes and ordered that the petition for execution be dismissed. With special leave, Modi has appealed to this Court.
4. The expression "premises" in section 5(8) of the Bombay Rents Hotel & Lodging House Rates (Control) Act 57 of 1947 does not include premises used for agricultural purposes. By section 6 of that Act the provisions of Part II which relate to conditions in which orders in ejectment may be made against tenants and other related matters apply to premises let for education, business, trade or storage. It is plain that the Court exercising power under the Bombay Rents Hotel & Lodging House Rates (Control) Act, 1947, has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Again in ascertaining whether the land demised is used for agricultural purposes, the crucial date is date on which the right conferred by the Act is sought to be exercised: Mst. Subhadra v. Narasaji Chenaji Marwadi, (1962) 3 SCR 98.
5. In this case the suit for ejectment against Munshi was instituted by Modi in the Court of Small Causes. No objection was raised that the Court had no jurisdiction to entertain the suit. The objection was not raised even in appeal, nor before the High Court. The Trial Court dismissed the suit on merits : the decree was reversed by the District Court and that decree was confirmed by the High Court. The objection was raised for the first time when the decree was sought to be executed.
6. A Court executing a decree cannot go behind the decree : between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a rulin
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