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IN THE HIGH COURT OF BOMBAY
Ashok Agarwal, J.
Mani Nariman Daruwala @ Bharucha Since deceased by his heirs and others... Petitioners.
Versus
Phiroz N. Bhatena and others... Respondents.
Writ Petition No. 1491 of 1984, decided on 5-10-1990.
Advocates appeared :
M.A. Rane, for the petitioners.
C.R. Dalvi, for respondent Nos. 5 and 6.
Section 15-A-Statutory tenant B permitting respondents 5 and 6 on 12-10-71 to occupy a licensees or portion of suit premises where licensees valid-Held-Statutory tenant can create licence-Such licences in favour of respondents 5 and 6 perfect valid.
Rule 97 Order 21 of the Code of Civil Procedure, in so far as is relevant for the present discussion, provides that:
"Where the phrase holder of a decree for possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction."
The phrase "holder of a decree for possession" which is contemplated under the above Rule postulates that he has to be a holder of valid decree for possession. The said phrase cannot include a person who is a holder of a decree which is nullity. Nullity is not a decree at all. Hence, before a decree holder can call upon a Court to hear his complaint in regard to the obstruction to the execution of his decree by a person who has no independent right to possession, he has first to qualify having the status of being the holder of a valid decree for possession. If the holds a decree which is nullity in law, he cannot be termed as a holder of a valid decree for possession, If he holds a decree which is a nullity in law, he cannot be termed as a holder of a decree which is capable of being put in execution. It follows that an obstructionist can always contend that the decree Under execution is a nullity and, therefore, the courts are refrained from entertaining an application for removal of the obstruction. Once such a contention is raised. It will be for the decree holder to establish that the decree which he has put in execution is a valid decree and the same is capable of being executed in my view, the above contention can be raised by an obstructionist even if he fails to establish that he has an independent right to possession. The holding of a valid decree is a sine qua non for initiation of proceedings under Rules 97 to 101 of Order XXI of the Code of Civil Procedure. If the decree under execution is a nullity, the decree bolder will not be heard to say that the obstructionist is illegally resisting its execution.
Prior to the amendment of 1976 it was open to an obstructionist like the respondents Nos. 5 to 6 to file a separate suit and contend that the decree under execution is a nullity and is not liable to be executed as against him. After the said amendment, such a contention is no longer open by filing a separate suit but is required to be raised, entertained and decided in the execution proceedings and this is the purport of Rule 101 of the Code of Civil Procedure Rule 101 provides as under:
"All questions (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions."
The bracketed portion of the above Rule would show that the questions relating to right, title or interest in the property are some of the questions which are required to be determined in the execution proceedings. This is apparent from the words "all questions including." Hence, what follows after the said phrase are merely illustrative and not exhaustive. Hence, the question whether the decree under execution is a valid decree or a nullity would fall under the phrase "all questions" arising between the parties to the proceeding of an application under Rule 97 and the said question would be required under the above rule be decided by the executing Court. Hence, the provisions of Rules 97 to 101 of Order 21, if properly construed cannot be held to mean that once a decree is put in execution, it can only be resisted by an obstructionist who has an independent right to possess.
2. The premises in dispute consist of block D, situate on the 3rd floor of Contractor Building at Bai Awabai Kashinath Road, Bombay 400 034. The petitioners are the owners whereas one Nadirshaw P. Bathena was the tenant on a rent of Rs. 57.30 Ps. per month. The said Nadirshaw died on 15th November, 1971 leaving behind him Respondent Nos. 1 to 4 as his heirs and legal representatives. During the life time of Nadirshaw, the petitioners by a notice dated 6th November, 1969 terminated his tenancy. On 12th October, 1971 the said Nadirshaw permitted respondent Nos. 5 and 6 who are husband and wife to occupy a portion of the aforesaid premises viz. two rooms and the common user of the kitchen and W.C. The said licence was for a period of eleven months. The said licence was on a payment of compensation of Rs.325/- per month. The said Nadirshaw, as already pointed out, expired on 15th November, 1971. Hence, there was no occasion for the licence being extended after 11th September, 1971. The respondent Nos. 5 and 6 continued in use and occupation of the suit premises. On 5th February, 1972 the petitioners filed against respondent Nos. 1 to 4 in the Court of Small Causes, Bombay, under section 41 of the Presidency Small Causes Courts Act, Ejection Application No. 88/E of 1972. Respondent Nos.1 to 4 resisted the said application on grounds, inter alia, that the Court had no jurisdiction under section 41 of the Presidency Small Causes Court Act. On 14th July, 1978 an ex-parte order was passed against respondent Nos. 1 to 4 directing them to vacate and hand over possession by 31st August, 1978. The said decree was put in execution wherein respondent Nos. 5 and 6, on 12th September, 1978, obstructed the delivery of possession. The petitioners, therefore, took out the present Obstructionist Notice No. 181 of 1978 for removal of the obstruction.
3. The respondent Nos. 5 and 6 resisted the said notice by raising two contentions :
(i) That they are sub-tenants or protected licensees under the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 ; and-
(ii) That the order under execution passed under section 41 of the Presidency Small Causes Court Act was without jurisdiction and is nullity.
4. The parties did not lead oral evidence but were content with proceeding with the trial on the strength of the affidavits. By a judgement and order dated 18th February, 1982 the trial Court held that the Respondent No. 5 and 6 were not the lawful sub-tenants or protected licensees under the Bombay Rent Act. It, however, held that the order under execution was a nullity. Consequent upon the said findings, the Obstructionist Notice was discharged with no order as to costs.
5. Being aggrieved by the aforesaid judgement and order, the petitioners preferred in the Appellate Court of the Court of Small Causes, Bombay, Appeal No. 190 of 1982. By judgement and order dated 29th November, 1983 the Appellate Court held that the respondent Nos. 5 and 6 are protected licensees and were entitled to protection under the Rent Act. It further held that the order under execution was a nullity. Consequent upon the said findings, the appeal of the petitioners was dismissed with no order to costs. Being aggrieved, the petitioners have preferred the present petition.
6. Shri Rane, the learned Advocate appearing on behalf of the petitioners decree holders submitted that the lower Appellate Court has erred in holding that respondent Nos. 5 and 6 are protected licensees. He drew my attention to the letter date 12th October, 1971 addressed by respondent No. 5 to Nadirsha Pestonji Bhathena by which a licence was created in favour of Respondent Nos. 5 and 6. He pointed out that the said licence permitted respondent Nos. 4
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