A decree passed by a Court without jurisdiction is a nullity and can be challenged at any time in any proceedings, irrespective of Order 21, Rule 97 onwards, of the Code of Civil Procedure.

Headnote:
ARBITRATION - AWARD - JURISDICTION - DISPUTE TOUCHING BUSINESS OF SOCIETY - AWARD WITHOUT JURISDICTION - NULLITY - EXECUTION - OBSTRUCTION - CHAMBER SUMMONS - SCOPE - ORDER 21, RULES 97 TO 103, CIVIL PROCEDURE CODE.
Fact of the Case:

The appellant, an employee of the 2nd respondent company, was in possession of a flat owned by the 1st respondent, a tenant-member of the 3rd respondent society. The appellant resigned from his employment and continued to reside in the flat. The 1st respondent initiated arbitration proceedings against the 2nd and 3rd respondents under section 91 of the Maharashtra Co-operative Societies Act, 1960, for an award directing the 2nd respondent to deliver possession of the flat. The appellant was not impleaded as a party to the arbitration proceedings. The appellant filed a suit in the Court of Small Causes for a declaration that he is the tenant of the 1st respondent. The 1st respondent obtained an award ordering the 2nd respondent to vacate the flat and pay compensation to the 1st respondent. The appellant filed an injunction notice in his suit restraining the respondent from executing the award. The 1st respondent obtained possession of the flat from the appellant. The appellant filed an appeal challenging the order of the learned judge of the City Civil Court making absolute the Chamber Summons taken out by the 1st respondent under Order 21, Rule 97 of the Code of Civil Procedure.
Finding of the Court:

The Court held that the appellant was not a tenant in his own right and that his case of tenancy lacked bona fides and was apparently a got-up one. The Court further held that the award was not without jurisdiction and hence was not a nullity. The Court also held that the appellant could not challenge the decree in the execution proceedings under Order 21, Rules 97 to 103 of the Code of Civil Procedure, as he was not a party to the suit in which the decree was passed.
Issues: 1. Whether the award was without jurisdiction and hence a nullity? 2. Whether the appellant could challenge the decree in the execution proceedings under Order 21, Rules 97 to 103 of the Code of Civil Procedure?
Ratio Decidendi: 1. The Court held that the award was not without jurisdiction and hence was not a nullity. The Court relied on the following factors: * The dispute between the 1st respondent and the 2nd respondent was a dispute touching the business of the society as it related to the letting out of a flat owned by the society. * The appellant was not a party to the arbitration proceedings and hence could not challenge the award on the ground of lack of jurisdiction. 2. The Court held that the appellant could not challenge the decree in the execution proceedings under Order 21, Rules 97 to 103 of the Code of Civil Procedure, as he was not a party to the suit in which the decree was passed. The Court relied on the following factors: * Order 21, Rules 97 to 103 provide a summary procedure for the execution of decrees and are not intended for decisions to be made on hearing oral evidence. * The appellant had the option to file a substantive suit to challenge the award, but he failed to do so.
Final Decision: The Court dismissed the appeal with costs.

JUDGMENT - B. LENTIN, J.:---This is an appeal from the order passed by the learned Judge of the City Civil Court, making absolute the Chamber Summons taken out by the 1st respondent under Order 21, Rule 97 of the Code of Civil Procedure.

2. The appellant (original obstructionist) claims to be the tenant of the 1st respondent who is the decree holder in Award No. ABN/D/1277 of 1972, and who is the purchaser of ownership Flat No. 8-37 at Worli Sea Face, Bombay, in a building belonging to the 3rd respondent, namely Venus Co-operative Housing Society, whereof the 1st respondent is a tenant-member. The 2nd respondent, namely J.L. Morison, Sons and Jones (India) Ltd., was at all material times the employer of the appellant.

3. On 24th April, 1969, the appellant was employed as the Sales Manager of the 2nd respondent company in its Bombay area. According to the appellant, in the end of May 1969, he contacted the 1st respondent through an Estate Agent for letting out Flat No. 9\8-37 (referred to hereafter as "the flat"), which the 1st respondent agreed to do at a monthly rent of Rs. 450/-. However, according to the appellant, the 1st respondent insisted on the execution of a company licence. The appellant thereupon approached his employer, namely the 2nd respondent, who executed a Leave and Licence Agreement dated 11th June, 1969 in favour of the 1st respondent in respect of the flat, initially for a period of 11 months, with an option to renew the same given to the licensee, namely the 2nd respondent. The brokerage and compensation in respect to this Flat were deducted by the 2nd respondent company from the appellants salary at source.

4. On 21st July, 1972, the appellant resigned from his employment with the 2nd respondent-company. According to the appellant, he thereafter approached the 1st respondent and requested her that she should allow the appellant to continue to reside in the flat which the 1st respondent agreed to do. The 2nd respondent obtained a letter dated 21st July, 1972 from the appellant whereby the appellant agreed to vacate the flat by 31st August, 1972. This letter is not on record but all the learned Counsel appearing for the respective parties stated that such a latter was passed by the appellant. The appellant, however, did not vacate.

5. Instead, on 4th September, 1972, the appellant filed a suit in the Court of Small Causes at Bombay being Suit No. 4189 of 1972 for a declaration that he is the tenant of the 1st respondent in respect of the flat. The 1st respondent filed arbitration proceedings against respondents 2 and 3, namely the appellants employer and the society respectively, under section 91 of the Maharashtra Co-operative Societies Act, 1960 for an award directing the 2nd respondent to deliver possession of the flat to the 1st respondent. In those proceedings, the appellant was not impleaded as a party. Thereupon on 25th January, 1973, the appellant filed an application for being impleaded as a party to the arbitration proceedings. This application was opposed by the 1st respondent. The appellants application was rejected on the ground that prima facie the appellant had not directed interest in the flat.

6. Being aggrieved by this order, the appellant filed an appeal to the Tribunal and made an application for stay of the arbitration proceedings. On 9th April, 1973, the appellants stay application was rejected on the ground that there was no privity of contract between the appellant and the 1st respondent. On 18th September, 1974, the appellants appeal before the Tribunal was dismissed for default. As stay of the proceedings had been refused, the arbitration proceedings proceeded and on 3rd May, 1973 an award was made ordering the appellants employers, namely the 2nd respondent to vacate the flat by 31st May, 1973 and to pay a sum of 3,600/- as compensation to the 1st respondent from 1st September, 1972 till 30th April, 1973 and a sum of Rs. 450/- per month till vacant possession of the flat was delivere

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1975 Supreme(Bom) 23

A decree passed by a Court without jurisdiction is a nullity and can be challenged at any time in any proceedings, irrespective of Order 21, Rule 97 onwards, of the Code of Civil Procedure.

Cases Referred (1)