Amar Nath vs Bagga Mal

P.C. Pandit, J.—Bagga Mal, respondent, filed a suit against Amar Nath, petitioner, for his ejectment under the Delhi and Ajmer Rent Control Act, 1952, on the grounds of non-payment of rent, subletting etc.

The suit was contested by the petitioner and, as a result, issues were framed on 21st January 1958 and the case was fixed for 11th April, 1958 for evidence. It appears that the same could not be taken up on that day and the case was adjourned to 28th April, 1958, on which date also it could not be heard and it was then fixed for 29th July, 1958. On this date, a compromise was effected between the parties. Counsel for the petitioner made a statement that the suit for ejectment be decreed in favour of the respondent, but the petitioner would vacate the premises within three years. In the event of this being done, the parties would be deemed to have been left to bear their own costs, otherwise the petitioner would pay costs to the respondent. In view of the statement of the counsel for the parties, the Court passed a decree for ejectment. The petitioner, however, did not vacate the premises within three years, but filed objections under sections 47 and 151, CPC and section 13 of the Rent Act on 29th July, 1961 on the ground that the decree passed against him on the basis of the compromise was illegal and a nullity, because, according to section 13 of the Rent Act, it was a condition precedent to the passing of a decree that the Court should be satisfied that the grounds for ejectment as mentioned in that section actually existed. There was on the record no material that the court was so satisfied.

These objections were contested by the respondent, as a result of which the following preliminary issues were framed :

Whether the decree is not executable for any of the reasons given in the judgment-debtor''s petition ?

Whether the said petition is not competent now when the 1952 Act has been repealed ?

Whether the petition is time-barred ?

Whether the executing Court cannot go behind the decree.

Relief.

On issue No, 1, the trial Court came to the conclusion that the compromise decree was a valid one and was executable by the decree-holder; In view of his finding on issue No. 1, other issues were not discussed and it was held that the petitioner was liable to ejectment from the premises in dispute.

Against this, the petitioner went in appeal to the learned Additional Senior Subordinate Judge, Delhi. He reversed the finding of the trial Court on issue No. 1 and held that the compromise decree was a nullity and was inexecutable. He, however, came to the conclusion that the objections of the petitioner were not maintainable on the short ground that they could not be gone into by an Executing Court and the petitioner should have filed a separate suit for that purpose. As a result, he dismissed the appeal. Against this, the present revision has been filed by Amar Nath.

The first question for decision is whether the compromise decree dated 29th July, 1958 was a nullity, not being in accordance with law.

This matter has been set at rest by a Division Bench ruling of this Court reported as Shri K. L. Bansal v. Shrimati Kaushalaya Devi (1962) 64 P. L. R. 1091, where it was held that before a valid decree for ejectment was passed against a tenant, the satisfaction of the Court as to the existence of one or the other ground mentioned in section 13 of the Delhi and Ajmer Rent Control Act, 1952, was essential. An ejectment decree passed only on the statement of parties without the Rent Controller satisfying himself on merits was contrary to the statutory provisions of the Act and was a nullity. In the present case also, no evidence was led by the parties and the ejectment decree was based merely on the statement of the learned counsel for the tenant, who stated that the ejectment suit be decreed in favour of the landlord and his client would vacate the premises within three years. The Division Bench authority fully covers this case and, in my opinion, the learned Additional Senior Subordinate Judge, Delhi, has correctly found that the decree was a nullity.

The next question for determination is whether this objection could be taken in the Executing Court or a separate suit should have been, filed for this purpose.

It is undisputed that an Executing Court cannot go behind the decree and is bound to execute it. It cannot refuse to do so, because either the decree is against law or contravenes the provisions of any statute. The only exception to this rule is that when the decree is passed by a Court, which had no. jurisdiction to pass it by reason of the inherent defect of jurisdiction in the Court passing it, the Executing Court can ignore it (see in this connection Full Bench decision in Pirji Safdar Ali y. The Ideal Bank Ltd A. I. R. 1949 E P. 94. The Supreme Court in Kiran Singh v. Chaman Paswan A. I. R. 1954 S. C. 340, has observed thus-

It is a fundamental 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.

The present case is not covered by the exceptions in the above mentioned authority, because the Court had jurisdiction to pass the decree.

The result is that this appeal fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.